(1) Cw 2997/06 Asgar Khan Vs. The Municipal Board, Ratan Nagar & Ors., (2) CW -6326/2007- Asgar Khan Vs. Civil Judge (JD), Churu & Ors. : Judgment dt:21.7.2008 1/6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT 1. Asgar Khan Vs. The Municipal Board, Ratan Nagar & Ors. S.B. CIVIL WRIT PETITION NO.2997/2006 2. Asgar Khan Vs. Civil Judge (JD), Churu & Ors. S.B. CIVIL WRIT PETITION NO.6326/2007 Date of order : 21st July, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. K.R. Saharan for the petitioner. Mr. Sabbir Khan for the respondents. --------- BY THE COURT:- 1. Both these two writ petitions, the petitioner Asgar Khan, who is plaintiff before the learned trial Court has challenged the order dated 1.9.2007 whereby the learned trial court had allowed the application under Order 1 Rule 10 C.P.C. of impleadment of one Puranmal and Ram Gopal (in S.B. Civil Writ Petition No.6326/2007) and in another writ petition, he has challenged the orders of two courts below dated 4.4.2006 of the learned trial court and dated 3.6.2006 of the learned appellate Court whereby both the courts below rejected the temporary injunction application under Order 39 Rule 1 and 2 filed by the petitioner-plaintiff. 2. The courts below have found that the land in question (1) Cw 2997/06 Asgar Khan Vs. The Municipal Board, Ratan Nagar & Ors., (2) CW -6326/2007- Asgar Khan Vs. Civil Judge (JD), Churu & Ors. : Judgment dt:21.7.2008 2/6 situated in village Ratan Nagar in khasra No.523 was being used as public land for Holi Dhora and Goga Meri (religious festivals) over which the plaintiff had made encroachment and constructed 4 shops in question for which he had filed the suit for injunction against the Municipal Council, Ratangar. The applicants Purnmal and Ram Gopal in representative capacity to ensure that the said public land is not encroached by the plaintiff not only filed application before the competent authority under Section 133 Cr.P.C. for causing public nuisance by encroachment but also sought to contest the suit filed by the plaintiff and, therefore, sought impleadment before the learned trial court. The learned trial Court allowed the said application under Order 1 Rule 10 C.P.C. 3. Mr. K.R. Saharan, learned counsel appearing for the petitioner-plaintiff submitted that the order passed in favour of the applicant Puranmal and Ram Gopal under Section 133 Cr.P.C. by the learned SDM, Churu on25.2.206 in case No.1/2002 has been set aside by the learned Sessions Judge, Churu allowing the Criminal Revision Petition No.12/2006 on 5.6.2006 and, therefore, the said applicants had no locus in the matter and the learned trial court had erred in allowing the application for impleadment under Order 1 Rule 10 C.P.C. Secondly, he submitted that both the courts below have erred in rejecting the application of the petitioner for granting of temporary injunction since the petitioner-plaintiff was in possession of the said 4 shops in question and there was no document of title with the (1) Cw 2997/06 Asgar Khan Vs. The Municipal Board, Ratan Nagar & Ors., (2) CW -6326/2007- Asgar Khan Vs. Civil Judge (JD), Churu & Ors. : Judgment dt:21.7.2008 3/6 respondent-defendants in respect of the said land and there was no evidence of the said land being public land. He further submitted that the application for regularization of the possession filed by the plaintiff petitioner was pending with the Municipal Council, Ratan Nagar for which he had also paid the fees of Rs.3,000/-. 4. He relied upon the judgment of this Court in Chiranji Lal Vs. Municipal Corporation Jaipur – 2001 DNJ (Raj.) 12. In that case, the trial court had allowed some persons to be impleaded as defendant on the ground that they were the persons having batter knowledge of circumstances and can assist the Court for reaching to a just conclusion. This Court allowed the revision petition against such order of the learned trial court. The facts of the present case are clearly distinguishable and, therefore, the said judgment is of no help to the learned counsel for the petitioner. 5. On the side opposite, Mr. Sabbir Khan, learned counsel appearing for the applicant Puran Mal and Ram Gopal submitted that the petitioner-plaintiff is a trespasser over the land in question which is a public land over which last many years the public of the said village have been performing their religious functions and ceremonies and the said plaintiff has forcibly encroached over the said land and, therefore, to safeguard the public interest, the applicants had filed the said application under Order 1 Rule10 and the learned trial court had allowed the same. He submitted that the same does not call for any (1) Cw 2997/06 Asgar Khan Vs. The Municipal Board, Ratan Nagar & Ors., (2) CW -6326/2007- Asgar Khan Vs. Civil Judge (JD), Churu & Ors. : Judgment dt:21.7.2008 4/6 interference by this Court. He relied upon a decision of this Court in S.B.Civil Writ Petition No.6890/2005 – Laxmi Narayan & Ors. Vs. The Board of Revenue & Ors. wherein this Court has held as under:- “The petitioners' challenge to implead the private respondent as party was negatived by the Board of Revenue after considering the fact that the order under Section 91 of the Land Revenue Act was passed at the instance of the added party and, therefore, if the appellate Court has not committed any error of law. Under Article 227 of the Constitution of India, the Court has supervisory jurisdiction and the petitioners failed to show how in such a summary proceeding, the case of the petitioners can be prejudiced by the presence of the respondent and particularly, when the respondent has been impleaded by the first appellate authority and challenge to it has been dismissed by the Board of Revenue. It is not a fit case to interfere in the impugned order even if it is held that the party should not have been impleaded. In view of the above reasons, I do not find any merit in these writ petitions and the same are hereby dismissed. ( PRAKASH TATIA ), J.” 6. He further urged that Municipal Council in its written statement filed before the learned trial court has clearly denied any right of the plaintiff over the said land and has said that the plaintiff was a trespasser and encroachee over the land in question and the Municipal Council has not taken any action on the application for (1) Cw 2997/06 Asgar Khan Vs. The Municipal Board, Ratan Nagar & Ors., (2) CW -6326/2007- Asgar Khan Vs. Civil Judge (JD), Churu & Ors. : Judgment dt:21.7.2008 5/6 regularization of the possession as the application in question was incomplete and the plaintiff had deposited the said sum without any order passed by any authority of Municipal Council. He drew the attention of this Court towards para 2 of the written statement filed by the Municipal Council. 7. Having heard learned counsels and upon perusal of the record of the case, this Court is of the opinion that the impugned orders do not require any interference by this Court under Article 227 of the Constitution of India. 8. Learned trial court in its discretion found it necessary to implead the applicants Puranmal and Ram Gopal as parties because it was a case of public land in question and such applicants in their representative capacity could lead evidence in that regard and, therefore, they were considered as necessary and proper parties in the matter, the same does not call for any interference by this Court. 9. The writ petition No.6326/2007 filed by the petitioner is without merit and the same is dismissed. 10. As far as the question of refusal of temporary injunction by the courts below rejecting the application under Order 39 Rule 1 and 2 is concerned, the same also does not require any interference by this Court as the right of plaintiff over the public land is seriously (1) Cw 2997/06 Asgar Khan Vs. The Municipal Board, Ratan Nagar & Ors., (2) CW -6326/2007- Asgar Khan Vs. Civil Judge (JD), Churu & Ors. : Judgment dt:21.7.2008 6/6 disputed by the Municipal Council itself and according to them, plaintiff has encroached over the land in question. The learned courts below have found no justification for grant of any temporary injunction. Such encroachees cannot be allowed to prolong their encroachment seeking indulgence of the Courts at one stage or other. The plaintiff has not shown any document in his possession giving him the semblance of any right over the said land in question, therefore, the learned courts below cannot be said to have committed any error in rejecting the temporary injunction of the plaintiff- petitioner. 11. According the second Writ Petition No.2997/2006 filed by the petitioner is also found to be devoid of merit and the same is accordingly dismissed. No order as to costs. [ DR. VINEET KOTHARI ], J. item No. babulal/-