S.B. Civil Writ Petition No.12497/2010 Ganesh Narayan & Anr. Vs. ADJ No.5 Jaipur City Jaipur & Anr. Dated : 01.10.2010 HON'BLE MR. MAHESH BHAGWATI,J. Mr. RK Daga, for the petitioners. *** By way of the instant writ petition, the petitioners have beseeched to set aside the orders dated 7th July, 2006 and dated 16th August, 2010 whereby the Additional Civil Judge (Sr.Div.) No.5, Jaipur City, Jaipur as also the Additional District Judge No.5, Jaipur City, Jaipur in its appellate jurisdiction, dismissed the application filed under Order 41 Rule 27 of CPC. 2. Heard the learned counsel for the petitioners and carefully perused the relevant material including the impugned orders on record. 3. Learned counsel for the petitioners canvassed that he has been in possession of the disputed property for more than 100 years. Even today the Restaurant is being run by the petitioners on this land. He obtained licence to run the Restaurant on 9th April, 1970. He obtained licence in the name of Gulab Chand on 19.6.1965. Thereafter, Municipality, Jaipur also issued the licence to run the Resteraunt on 9.4.1970 which remained effective upto 1995. Municipal Corporation issued licence on 1.7.1995 to run the Restaurant in the name of Siyaram Bhojnalaya, under the provisions of Rajasthan Shop and Commercial Establishment Act. This licence has been renewed from time to time. Gulab Chand is the father of plaintiff No.1-Ganesh Narain. Thus, it is well established that he has been in possession over disputed land. Both the learned courts below sans considering all these facts and circumstances, dismissed the injunction petition arbitrarily. His main prayer is that the petitioner should not be dispossessed sans following the due process of law. Learned Apex Court also time and again has observed that even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. He has cited the case of Krishna Ram Mahale Vs. Mrs. Shobha Venkat Rao reported n 1990 Civil Court Cases, 365 (S.C.). 4. In the case of Krishna Ram Mahele (Supra) the Hon'ble Apex Court has held thus: “It is well established in the Court that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossesed by the owner of the property except by recourse to law. If any authority were needed for that proposition we could refere to the decision of a Division Bench of the Court in Lallu Yashwant Sigh V. Rao Jagdish Singh, AIR 1968 S.C., 620. 5. A Judgment of Privy Council was also cited in the above case wherein the Privy Council had observed thus : “In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.” 6. The learned Appellate Court dismissed the appeal on the ground that the petitioner neither unfolded the area and the boundaries of the said property nor could prove that the documents submitted by the petitioners were in any way related to property in question. Be that as it may, having considered the submissions made by the learned counsel for the petitioners and relying upon the observations made by the Hon'ble Apex Court in the aforesaid judgment, I am of the view that the petitioners cannot be dispossessed sans following due process of law. 7. For the reasons stated above, the writ petition succeeds. The impugned orders dated 7th July, 2006 and dated 16th August, 2010 rendered by Additional Civil Judge (Sr.Div.) No.5, Jaipur City, Jaipur as also the Additional District Judge No.5, Jaipur City, Jaipur, stand set aside. 9. The respondents are directed not to dispossess the petitioners from the disputed property except by recourse to law or sans observing the due process of law. (MAHESH BHAGWATI)J. Pcg item No.42.