CMA-1355/09-Premvada Kachhwaha & Ors. Vs. Shankar Lal Devasi. Judgment dt.22.1.10 1/3 S.B. CIVIL MISC. APPEAL NO.1355/2009 Premvada Kachhwaha & Ors. Vs. Shankar Lal Devasi. Date of order : 22nd January, 2010 HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Vijay Bishnoi for the appellants. Mr. O.P. Mehta for the respondent. ------- 1. Heard learned counsels. 2. This appeal is directed against the order dated 23.10.2009 of the learned ADJ, Abu Road, District Sirohi by which the learned appellate court below has rejected the application under Order 39 Rule 1 and 2 C.P.C. of the appellant-defendants Smt. Premvada Kachwaha & Ors. 3. Learned counsel for the appellants, Mr. Vijay Bishnoi submitted that the said application under Order 39 Rule 1 and 2 C.P.C. was filed by the appellant in proceedings under Section 144 C.P.C. seeking restitution of the possession from the plaintiff- respondent, who filed the suit for possession which was earlier decreed by an ex-parte decree but the same was set aside on the application filed by the present appellants and, therefore, the learned court below has erred in relying upon the findings given in such ex- parte decree treating the status of the present appellant as trespasser. 4. Learned counsel submits that during the pendency of the proceedings under Section 144 C.P.C., the learned court below ought to have granted the injunction against the respondent since the CMA-1355/09-Premvada Kachhwaha & Ors. Vs. Shankar Lal Devasi. Judgment dt.22.1.10 2/3 respondent started undertaking the construction work on the land in question. 5. On the other hand, Mr. O.P. Mehta, learned counsel appearing for the respondent-plaintiffs vehemently submitted that the respondent Shankar Lal Devasi was the original patta holder of the land in question obtained from the Municipal Council, Mount Abu and he had only given a licence to one, Nova whose wife Panni gave it further to one Bheru Singh and Bheru Singh allegedly sold this land even without any right of such sale in him to said Shri Narayan Singh whose legal heirs are the present appellants before this Court. He submitted that since the said Narayan Singh could not get any valid title of the said land in question, the original owner respondent Shankar Lal Devasi cannot be deprived of his right to raise construction on the land in question as the status of Narayan Singh Devasi would remain as that of trespasser and, therefore, the learned court below has rightly rejected the said T.I. Application treating the present appellant as trespasser only. He submitted that irrespective of the proceedings under Section 144 C.P.C. the earlier application filed by the present appellant for appointment of Receiver under Order 40 Rule 1 C.P.C. was also rejected by the learned court below and, therefore, the appellants have no right to injunct the respondent from raising the said construction over his own land and they cannot get any title over the land in question as a licencee has no right to sell the land in question. He also submitted that said Panni and Bheru singh CMA-1355/09-Premvada Kachhwaha & Ors. Vs. Shankar Lal Devasi. Judgment dt.22.1.10 3/3 have admitted before the court below in their written statement that they were only licencees of the property in question. 6. Having heard learned counsels at some length and in view of the reasons given by the learned court below in the impugned order, this Court is of the view that the learned court below cannot be said to have erred in rejecting the application under Order 39 Rule 1 and 2 C.P.C. If the title itself cannot be said to be vesting in the present appellants and they claimed only through one person who was a licencee of the respondent-plaintiff merely because the proceedings under Section 144 C.P.C. are pending before the Court below at the instance of appellants, it cannot mean that the appellants got any right to raise the construction over the land in question or to injunct the respondent-plaintiff to raise construction on the said land in question by him. The respective rights of the parties are of course yet to be decided by the court below and, therefore, without expressing any opinion on the merit of the rival contentions, this Court does not find any ground to interfere with the impugned order dated 23.10.2009 passed by the court below. 7. The appeal is thus found to be devoid of merit. The same is accordingly dismissed. It is expected from the court below that the matter pending before it shall be decided expeditiously preferably within a period of three months. [ DR. VINEET KOTHARI ], J. item No.16 babulal/