1 S.B.CIVIL WRIT PETITION NO.1660/2009. Gopal Sharma. VS Municipal Board, Kishangarh & Ors. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.1660/2009. Gopal Sharma. VERSUS Municipal Board, Kishangarh and Others. 12.03.2010. HON'BLE MR.JUSTICE DALIP SINGH Mr.N.K.Joshi, for the petitioner. Mr.Mahesh Gupta and Mr.Laxmikant on behalf of Mr.G.K.Garg, for the respondent No.1. ***** Heard learned counsel for the parties. The matter comes up on the application filed under Article 226(3) of the Constitution of India by the respondent for vacation of the interim order passed ex- parte on 13.02.2009 whereby the parties were directed to maintain status quo in respect of the property in dispute. The facts, in brief, are that the petitioner filed a suit for permanent injunction and in the said suit an application for the grant of temporary injunction was also filed with the prayer that the defendants himself through servants and officers be restrained not to demolish or alter the property of the plaintiff and further not to allot the land to any third party or create any third party interest in the same and restrain the defendants from interfering in the peaceful possession and use of the property by the plaintiff. The defendants 2 S.B.CIVIL WRIT PETITION NO.1660/2009. Gopal Sharma. VS Municipal Board, Kishangarh & Ors. filed reply and interalia contended that the land in dispute is in the possession of the Municipality and the Municipality had in fact auctioned the property in dispute and had allotted the same to the auction purchaser and the same has been mutated in the name of the auction purchaser. The learned trial court taking note of the pleadings of the parties and material placed before it while deciding the question of prima facie case, balance of convenience and irreparable injury came to the conclusion that the plaintiff-petitioner had failed to prove that he was in the possession of the land in dispute and accordingly the learned trial court dismissed the application for the grant of temporary injunction vide order dated 13.08.2008. The petitioner preferred a Misc. Appeal against the aforesaid order before the learned Additional District Judge, Kishangarh, District Ajmer but by the impugned judgment dated 15.01.2009 the learned appellate court upheld the order passed by the learned trial court and dismissed the appeal holding as follows:- "ः वयं अपीलाथȸ-ूाथȸ ने अपने आवेदन पऽ मɅ हȣ ः पं ट Ǒकया है Ǒक उÈ त पैशोल पंप 01 जून, 67 से शुǾ होकर Ǒदनांक 4/3/80 तक चला उसके उपराÛ त बंद हो गया और अः थाई िनषेधा£ा के आवेदन के चरण संÉ या-11 मɅ हȣ यह उã लेख ः पं ट Ǿप से Ǒकया गया है Ǒक नगर पािलका Ǒकशनगढ़ Ʈारा उस पर Ǒकया गया िनमा[ण को Ú वः त कर कÞ जा कर िलया और अपना बोड[ लगा Ǒदया है अथा[त् आवेदन पऽ ूः तुत करने कȧ ितिथ 28/5/08 को उÈ त भूिम पर कÞ जा होना भी ूाथȸ नहȣं मानता है और कÞ जा ूाÜ त करने हेतु कोई वाद भी ूः तुत नहȣ Ǒकया गया है और 3 S.B.CIVIL WRIT PETITION NO.1660/2009. Gopal Sharma. VS Municipal Board, Kishangarh & Ors. वादमः त भूिम पर मािलकाना हक नहȣं होने के बावजूद भी मािलकाना हक कȧ घोषणा का भी वाद ूः तुत नहȣ Ǒकया गया है । बǔã क केवल माऽ िनषेधा£ा का वाद ूः तुत Ǒकया गया है इसिलए ǒवƮान अधीनः थ Û यायालय Ʈारा अपीलाथȸ- ूाथȸ के प¢ मɅ ूथम Ǻं टया वाद, सुǒवधा का सÛ तुलन एवं अपूत[नीय ¢ित के ǒबÛ दु नहȣं मानने मɅ Ǒकसी ूकार कȧ कोई ऽुǑट नहȣं कȧ है बǔã क Ǒदये गये िनं कष[ ूः तुत ूलेखɉ व ǒविध के ूाव धानɉ के अनुǾप Ǒदये गये है इसिलए ǒवƮान अधीनः थ Û यायालय Ʈारा पाǐरत Ǒकया गया ूँ नगत आदेश मɅ हः त¢ेप Ǒकये जाने कȧ Ǒकसी ूकार कȧ कोई गुंजाईश नहȣ हɇ।" A look at the above facts mentioned hereinabove goes to show that two courts below have given finding regarding possession against the plaintiff-petitioner. In that view of the matter, the plaintiff-petitioner has failed to prove prima facie case in his favour. So far as the observations made by the learned appellate court with regard to the maintainability of the suit is concerned, this court at this juncture would not like to give any observation in that behalf as it may prejudicially affect the rights of either of the parties. Suffice it to say that so far as the possession is concerned, the plaintiff-petitioner has failed to prove his possession over the property in dispute. From the material which has been placed on record, it has come that the respondents have by auctioning the property in dispute after taken necessary sanctions created third party interest in the same. In that view of the matter, it is abundantly clear that so far as the possession is concerned, the 4 S.B.CIVIL WRIT PETITION NO.1660/2009. Gopal Sharma. VS Municipal Board, Kishangarh & Ors. petitioner has failed to prove his possession over the property in dispute. Taking note of the aforesaid facts and circumstances, it is directed that the prayer with regard to maintaining status quo over the property in dispute so far as the possession of the property is concerend, the same is rejected. In case the petitioner wants any relief against those who are in the possession, since the case of the respondents is that the land after having been auctioned third party rights have been created and the said auction purchasers have raised constructions over the site, it would be open for the petitioner to take necessary steps in accordance with law before the learned trial court in that behalf. Subject to the above, the writ petition and the application No.5562 stands disposed of. The interim order is vacated. The (DALIP SINGH),J. Solanki DS, Jr.P.A.