SBCMA No.265/2008 Ajay Singh Vs. Maheshwari Samaj Jodhpur & Ors. 1 SBCMA No.265/2008 Ajay Singh Vs. Maheshwari Samaj Jodhpur & Ors. DATE OF ORDER : - 17.10.2008 HON'BLE MR. PRAKASH TATIA, J. Mr. Girish Joshi, for the appellant. Mr. Murlidhar Boob, for the respondent. <><><> Heard learned counsel for the parties. The appellant is aggrieved against the order dated 13.2.2008 by which the trial court dismissed the appellant's-plaintiff's application for grant of injunction in a suit for declaration, possession and injunction. According to the plaintiff the property was originally belonging to Meer Ajeer Ali and Fiyaz Ali vide Patta issued by the erstwhile ruler in the Samwat year 1931. Meer Ajeer Ali died issueless and Fiyaz Ali's sold his part of property to one Sardar Khan vide sale deed dated 9.1.1914, the land in question which is purchased by the plaintiff's predecessor Kifayat Ullaha from Sardar Khan is 34848 sq. Yards. The plaintiff purchased this property from Kifayat Ullaha by SBCMA No.265/2008 Ajay Singh Vs. Maheshwari Samaj Jodhpur & Ors. 2 registered sale deed on 28th Oct., 2006. According to the plaintiff, the defendant Maheshwari Samaj and its persons forcibly dispossessed the plaintiff from the land in question on 30th Oct., 2006 i.e., just after the property was purchased by the plaintiff. The plaintiff alleged that when plaintiff inquired, he found that defendants are claiming that the property is belonging to them by virtue of one Patta, which according to the plaintiff is in fact, forged one. It is also alleged that in another suit, the Court Commissioner was appointed, who gave report, copy of which has been submitted by the plaintiff in this suit wherein the Court Commissioner reported that there was no construction on the property in dispute. The defendants forcibly and illegally tried to raise some construction, upon which the plaintiff approached the police but no action was taken by the police in this matter. Learned counsel for the appellant vehemently submitted that the trial court while deciding injunction application observed that Pattas set up by the plaintiff may be forged one whereas the Patta in question is of the Samwat Year 1931 and the property was subjected to SBCMA No.265/2008 Ajay Singh Vs. Maheshwari Samaj Jodhpur & Ors. 3 transfer by sale deed dated 9.1.1914 and in view of the above reason, the trial court has committed serious error of law by pre-judging the issue about the title of the plaintiff. It is also submitted that during the pendency of the suit, the property is required to be protected otherwise third party right may be created by the defendants and they may alter the entire property for which they have no right. Learned counsel for the respondent vehemently submitted that the suit has been filed by the land grabbers with absolutely forged document. According to learned counsel for the respondents that land shown in the Patta is more than 14 bighas which means the land which was given by the Patta set up by the plaintiff is about 63,000 sq. yards. Out of this, it is alleged that plaintiff purchased 34848 sq. yards by alleged sale deed dated 9.1.1914, which is also unregistered sale deed. The plaintiff did not disclose in the plaint what happened to the rest of the land, which was not sold to plaintiff. It is also vehemently submitted that any person can well understand from the neighbourhood given in the Patta that Patta set up by plaintiff has no connection with the property in dispute. It SBCMA No.265/2008 Ajay Singh Vs. Maheshwari Samaj Jodhpur & Ors. 4 is also submitted that the property in dispute belongs to Maheshwari Samaj whose tenants are and were in the property in dispute. There are three temples in the property in dispute. The entire property is bounded by wall with gates. The Maheshwari Samaj fought cases against the tenants upto the Hon'ble Supreme Court and succeeded in obtaining the decrees. The aforesaid property was treated to be a public trust property by the Deosthan Department, which issue was contested by the defendants Maheshwari Samaj wherein it has been held that the property in question is private property of Maheshwari Samaj and this has been held so by this Court also and not a single event has been explained by the plaintiff, therefore, the plaintiff's injunction application should have been dismissed by the lower court with other grounds, other than the grounds mentioned in the impugned order. I considered the submissions of learned counsel for the parties and perused the record also. Both the parties are claiming title to the property and plaintiff in his own plaint clearly stated that he is claiming title over the property by virtue of sale deed, but his predecessor's sale SBCMA No.265/2008 Ajay Singh Vs. Maheshwari Samaj Jodhpur & Ors. 5 deed is unregistered sale deed. The trial court considered the title deed of the plaintiff as well as the facts about the present situation of the property and observed that it is unbelievable that in the property of one Mohamdan that too a private property, there can be three temples. How this finding can be said to be perverse has not been explained by the plaintiff in any manner as well as even by filing rejoinder to explain the position Be it as it may be, in the plaint it is no where mentioned that how and when and who constructed the boundary wall for the entire property. It is also not explained what happened to the remaining properties of the sellers even when plaintiff himself came to know about the alleged title deed of the defendant for the property in dispute. Not only this, for possession, the plaintiff failed to produce any evidence by which it can be gathered that plaintiff was in possession of the property. The plaintiff's lodging FIR is only ascertaining the right by the plaintiff and that too, just before filing of the suit. The plaintiff predecessor in title Kifayat Ali did not file affidavit in support of the plaintiff. In view of the above, the plaintiff failed to prove his prima facie case for any relief. SBCMA No.265/2008 Ajay Singh Vs. Maheshwari Samaj Jodhpur & Ors. 6 So far as contention of learned counsel for the appellant that the property is required to be protected during the pendency of the suit is concerned, that also cannot be accepted in view of the facts of the case. The relief of injunction can be granted only when the plaintiff can satisfy the court about his prima facie case, balance of convenience and irreparable injury. The grant of injunction is a serious matter and it puts restriction upon other party. The long and settled position of law cannot be altered on the ground of mere sympathy that the property is liable to be altered when the plaintiff failed to prove even prima facie case. In view of the above reasons, I do not find any merit in this appeal and the same is here by dismissed. However, it is made clear that made in this order shall not come in the way of the plaintiff in deciding the main suit itself. (PRAKASH TATIA), J. c.p.goyal/-