// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.8389/2004 Suresh Kumar S/o Har Narain and Another Versus Niranjan Lal S/o Ghisa Ram and Others Date of Order ::: 03.07.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Manoj Pareek, Counsel for petitioners Shri M.M. Ranjan, Counsel for respondents #### By the Court:- Admit. At the request of the learned counsel for the parties, the final arguments were heard in the case. Plaintiff-respondent filed a suit for permanent injunction as well as injunction in mandatory form in respect of disputed property along-with an application for temporary injunction which was dismissed by the trial court. However, on appeal, the appellate court set-aside the order passed by the trial court and allowed the application for temporary injunction and directed both the parties to maintain the status-quo in respect of disputed property during the pendency of the suit. The order of the appellate court has been challenged // 2 // by the defendant in the present writ petition. The learned counsel for the petitioners contended that the trial court rightly dismissed the injunction application filed by the plaintiffs by observing that the plaintiff is not the owner of the property in dispute. The Naib Tehsildar, vide its order dated 17th May, 2004, passed an order of dispossession of the plaintiffs and the said order was not challenged by way of an appeal before the Collector or Revenue Authorities. He further contended that as per the finding of the trial court the construction raised by the plaintiffs is on public land and the plaintiffs had no title whatsoever over it. The appellate court committed an illegality in interfering with the discretionary order passed by the trial court dismissing the application for temporary injunction. He further contended that the reasons assigned by the appellate court for reversing the finding of the trial court are not justified and, as such, the order of the appellate court be set-aside. The learned counsel for the plaintiff- respondents contended that the land in dispute was purchased by the plaintiffs from Gram Panchayat in the year 1973 and a lease-deed was issued in their favour and only thereafter they // 3 // raised construction over it. The plaintiffs are in possession of the disputed land and residing there since 1973. The plaintiffs are not raising any construction over it. It is further contended on their behalf that two Commissioners were appointed in the present case and as per the report of the Commissioners the plaintiffs' possession was found over the land in dispute at the spot, therefore, the plaintiffs were entitled to get injunction only on the basis of possession, otherwise also they have title in respect of disputed land i.e. lease-deed issued by Gram Panchayat. He, therefore, contended that the appellate court was fully justified in setting-aside the order of the trial court and in passing the impugned order. I have considered the submissions of the learned counsel for the parties and examined the impugned orders passed by both the courts below. The trial court while dismissing the application for injunction filed by the plaintiffs recorded a finding that the plaintiffs could not prove their legal title over the disputed plot. The Naib Tehsildar has already passed an order dated 17th May, 2004 against the plaintiffs for their dispossession. The appellate court recorded a finding that two Commissioners were appointed, who submitted // 4 // their reports dated 4th January, 2003 and 6th July, 2004; the disputed property is situated in the village; the plaintiffs purchased the property in dispute from Gram Panchayat and a 'patta' was issued in their favour in the year 1973; the construction work of the plaintiffs over the disputed land is not going on but it is old one; the order passed by the Naib Tehsildar dated 17th May, 2004 is prima-facie contrary to the principles of natural justice and arbitrary also. The appellate court recorded a finding of fact about possession of the plaintiffs in their favour and prima-facie case was found in favour of the plaintiffs. The appellate court decided all the ingredients for the purpose of granting temporary injunction i.e. prima-facie case, balance of convenience and irreparable injury, in favour of the plaintiffs. After considering the submissions of learned counsel for the parties as well as the reasons assigned by both the courts below, I find that the reasons assigned by the first appellate court appear to be more justified and the appellate court has not committed any illegality in setting-aside the order of the trial court in the facts and circumstances of the present case. The appellate court has rightly passed an order maintaining the status- // 5 // quo in respect of the disputed property during the pendency of the suit. No order has been passed to raise new construction by the plaintiffs. In these circumstances, I do not find any illegality, perversity or jurisdictional error in the order passed by the first appellate court so as to interfere with the same while exercising the writ jurisdiction under Article 227 of the Constitution. In view of the above discussion, I do not find any merit in this writ petition and the same is accordingly dismissed with no order as to costs. (Narendra Kumar Jain) J. //Jaiman//