DBSAW NO.297/10. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R D.B. CIVIL SPECIAL APPEAL (WRIT) NO.297/2010. IN S.B. CIVIL WRIT PETITION NO.13341/2008. Shilpacharya Vishwakarma Grih Nirman Sahakari Samiti Ltd. Vs. State of Rajasthan & Ors. Date of order : 20/10/2010. HON'BLE Mr.JUSTICE ARUN MISHRA HON'BLE Mr.JUSTICE MOHAMMAD RAFIQ Shri Suresh Pareek for the appellant. Shri R.N. Mathur for respondents No.4 & 5. ****** (Per Hon'ble Mr.Justice Mohammad Rafiq) This appeal has been filed by the appellant Shilpacharya Vishwakarma Grih Nirman Sahakari Samiti Ltd. against the order dated 27/3/2009 passed by the learned Single Bench. By this impugned-order dated 27/3/2009, learned Single Bench while allowing the application filed by respondents No.4 and 5, vacated the interim-order passed in favour of the appellant- writ-petitioner on 26/11/2008. Shri Suresh Pareek, learned counsel for the appellant has argued that the learned Single Bench has erred in law in allowing the application under Article 226(3) of the Constitution of India filed by DBSAW NO.297/10. 2 respondents No.4 and 5, who had no authority to run the marriage garden from the disputed property on the basis of license which was illegally granted to them by the Municipal Corporation. Validity of this license was challenged before the learned Single Bench. It was argued that petitioner was bonafide purchaser of the disputed land/property from Shri Amar Chand Tamara, who is grand-father of respondent No.4 Shri Sanchit Tamara and respondent No.5 Shri Subeer Singh Tamara. Shri Amar Chand Tamara executed an agreement to sale in favour of the appellant- society. When the sale-deed was not executed, the appellant-society filed a suit for specific performance which was decreed by the court of learned Additional District & Sessions Judge No.7, Jaipur City, Jaipur vide judgment dated 17/2/1995. Shri Amar Chand Tamara preferred civil first appeal, being S.B. Civil First Appeal No.104/1999, against the aforesaid judgment. In that first appeal, this Court passed interim-order of status-quo on 20/7/1999 directing parties to maintain status-quo. In the face of status-quo order, the Municipal Corporation could not have issued license to respondents No.4 and 5. Application for impleadment filed by respondents No.4 and 5 in the said appeal under Order 1 Rule 10 CPC was dismissed by the Single Bench of this Court holding that there were not necessary parties. In the circumstances, their application for vacation of stay order could not have been entertained by the learned Single Bench because they had no locus standi. It was DBSAW NO.297/10. 3 argued that the disputed property was not ancestral property as that was asserted by Shri Amar Chand Tamara. Respondents No.4 and 5 were illegally running the marriage garden from that property. In fact, respondents No.4 and 5 filed suit for permanent injunction along with application for temporary injunction against the Municipal Corporation in the civil court. Municipal Corporation contested the application for temporary injunction and yet thereafter illegally granted license to run the marriage garden to respondents No.4 and 5. Appellants were held to be in possession of the disputed property. It is therefore prayed that the impugned order passed by the learned Single Bench be set-aside and their possession be restored. Shri R.N. Mathur, learned counsel for respondents No.4 & 5 opposed the appeal and argued that although it may be a fact that the suit for specific performance filed by the appellant has been decreed against Shri Amar Chand Tamara but it is not correct to say that the civil court in that suit has given any finding as regards the possession of the appellant over the disputed property in question. Learned counsel referring from the judgment of the civil court dated 17/2/1999 argued that in no part thereof, such finding has been given in favour of the appellant nor such a fact was pleaded in the civil suit. Appellant even filed contempt petition against those respondents before this Court bearing S.B. DBSAW NO.297/10. 4 Civil Contempt Petition No.286/2005 alleging violation of the status-quo order of this Court dated 20/7/1999. Contempt petition was dismissed vide order of this Court dated 9/10/2006. Learned counsel produced copy of the said order for perusal of the court. Municipal Corporation granted license to respondents No.4 and 5 after fully satisfying themselves about their possession. Mere filing of the injunction suit by them would not be an impediment for grant of license to them for running the marriage garden by the Municipal Corporation if otherwise, it was in conformity with law. For the same reason, rejection of their application for impleadment in the civil first appeal would not in any manner affect validity of action of the Municipal Corporation. We have given our thoughtful consideration to the rival submissions and perused the material available on record. At the outset, we may observe that when specific querry was put to the learned counsel appearing for the appellant to show as to by which court and at which point of time, finding of possession has been given in its favour, learned counsel could not produce any such order nor could satisfy us as to possession of the appellant over the disputed land. Fact that the status-quo order has been granted by this Court on 20/7/1999 goes to show that in fact execution of the decree did not take place. This also implies that Shri Amar Chand Tamara DBSAW NO.297/10. 5 or through him, respondents No.4 and 5 continued to remain in possession of the disputed land. It is on that basis that license for running the marriage garden in the name of Tamara Marriage Garden was granted to them by the Municipal Corporation. We do not want to dwel much on this issue because main writ petition is still pending except observing that neither the Municipal Corporation nor respondents No.4 and 5 were party respondents in civil first appeal in which status-quo order was passed. In our view, so long as license granted by the Municipal Corporation for running the marriage garden is not revoked or its renewal is not refunded or the same was otherwise not declared illegal by the Single Bench in the writ petition, order passed by the Single Bench, cannot be faulted. Learned Single Judge thus did not commit any illegality in vacating the stay order. The appeal being devoid of merit is accordingly dismissed. (MOHAMMAD RAFIQ), J. (ARUN MISHRA), J. anil/- DBSAW NO.297/10. 6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R D.B. CIVIL MISC.STAY APPLICATION NO.649/2010. IN D.B. CIVIL SPECIAL APPEAL (WRIT) NO.297/2010. IN S.B. CIVIL WRIT PETITION NO.13341/2008. Shilpacharya Vishwakarma Grih Nirman Sahakari Samiti Ltd. Vs. State of Rajasthan & Ors. Date of order : 20/10/2010. HON'BLE Mr.JUSTICE ARUN MISHRA HON'BLE Mr.JUSTICE MOHAMMAD RAFIQ Shri Suresh Pareek for the applicant-appellant. Shri R.N. Mathur for respondents No.4 & 5. ****** (Per Hon'ble Mr.Justice Mohammad Rafiq) **** Consequent upon dismissal of the main appeal, this stay application does not survive and the same is consequently dismissed. (MOHAMMAD RAFIQ), J. (ARUN MISHRA), J. anil/-