The appellant appealed against the dismissal of a suit for mandatory and permanent injunction seeking to enforce a settlement regarding disputed possession of land, the ownership of which admittedly belonged to neither party.
The appeal against the judgment and decree was dismissed, and the stay application was also dismissed.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
: J U D G M E N T :
S.B. CIVIL SECOND APPEAL NO.278/2011
Krapesh Lakhara Vs. Kamla & Ors.
Date of Judgment :: 12.05.2014
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Ravindra Acharya, for the appellant.
BY THE COURT:
This appeal is directed against judgment and decree dated 16.04.2010 passed by Additional District Judge (Fast Track), Parbatsar, District – Nagaur, whereby the appeal filed by the appellant against the judgment and decree dated 15.03.2008 passed by Civil Judge (Senior Division), Parbatsar, District – Nagaur has been rejected.
The facts in brief may be noticed thus: the appellant filed the suit for mandatory and permanent injunction against the respondents with the averments that the house of appellant and respondent Nos. 1 and 2 are situated next to each other. A four feet wide land belonged to the appellant and beyond which the four feet land was that of his possession, however, on account of dispute between the parties, a settlement was arrived at, wherein certain terms were agreed between the parties, but the
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respondent Nos. 1 and 2 were seeking to act against the said compromise dated 30.08.2002 and, therefore, they be restrained from doing so.
A written statement was filed by the respondents disputing the averments made in the plaint.
The trial court framed four issues and after evidence was led by the parties, the trial court came to the conclusion that the construction was not taking place in the disputed area, as the plaintiff had not filed a suit seeking declaration, the same was not maintainable and, consequently, dismissed the suit.
The first appellate court after hearing the parties, upheld the finding recorded by the trial court.
I have considered the submissions made by learned counsel for the appellant and perused the judgments passed by both the courts below as well as the record of the case.
The suit essentially appears to have been filed seeking enforcement of a settlement arrived at between the plaintiff and defendant Nos. 1 and 2 qua a four feet wide land, which admittedly did not belong to either of the parties regarding which the appellant claimed possession for a long time. In the firm opinion of this Court, the suit seeking enforcement of an agreement qua a property, which admittedly did not belong to either of the parties cannot be maintained and irrespective of the contentions raised by the parties in the suit and the findings recorded by both the courts below, the suit on first principles itself was not maintainable.
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If the appellant-plaintiff was aggrieved of violation of any civil rights, it was open for him to file a suit in that regard, but the nature of suit, which was filed, as noticed above was not maintainable and it cannot be said that the courts below were in error in dismissing the suit filed by the plaintiff.
In view of the above, the present second appeal has no substance and the same is, therefore, dismissed.
The stay application is also dismissed.
(ARUN BHANSALI), J.
PKS-38
3 issues framed by the court
Whether a suit for injunction to enforce a settlement agreement regarding disputed possession of land, admitting ownership of neither party, was maintainable in law.
Whether the lower courts erred in dismissing a suit for mandatory and permanent injunction founded on an unexecutable agreement regarding land to which no party had title.
Whether the present second appeal has any substance and merits allowing.
Krapesh Lakhara
Kamla
Arun Bhansali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
