High Court dismissed a writ petition challenging an appellate order granting temporary injunction. The Court found no error apparent on the face of the record in denying the petitioners’ claim to the disputed land and confirming the plaintiff’s right of access.
Writ petition dismissed. Stay application disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.2684/2015 S.B. CIVIL MISC. STAY APPL. NO.2403/2015 Govinda & Ors. vs. Mangu Ram
DATE OF ORDER : : 10th March, 2015
**HON'BLE MR. JUSTICE MOHAMMAD RAFIQ *********
Shri Sajid Ali ) Shri Dinesh Sharma ) for the petitioners ##
This writ petition arises out of the suit filed by the plaintiff‐respondent for injunction. The learned trial court by order dated 10.11.2014 while dismissing the application for temporary injunction filed by the plaintiff‐respondent has granted partial injunction in favour of the defendant‐petitioners to the effect that the plaintiff may not remove the khol, kunda, cattle yard, kudi and stones lying on the disputed land. The aforesaid order was appealed against by the plaintiff‐respondent. The appellate court by impugned order dated 6.2.2015 while reversing the order passed by the trial court has granted temporary injunction in favour of the plaintiff‐ respondent to the effect that pending decision of the civil suit, the defendants shall not, in any manner, obstruct the movement of the plaintiff through the house from the land in dispute, nor
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shall allow the same to be done through their employee or representative.
Shri Sajid Ali, learned counsel for the petitioners has argued that the learned appellate court has erred in law in reversing the finding of prima facie case recorded by the trial court in favour of the defendant‐petitioners. The learned counsel has taken the Court through the judgement of the trial court as also the appellate court. He has, in particular, relied on the findings of prima facie case recorded by the trial court, which is based on the report of the Court Commissioner. It is argued that the Court Commissioner in his report has disputed the fact that there was 15 feet wide road, but has stated that there was only a pagdandi. It is argued that whether or not there is alternative way available to the plaintiff was for him to prove because the plaintiff has to prove his own case and cannot rely on the weaknesses of the defendants. The way in dispute passed through the land of khasra no.959 is in the khatedari of Paltu and did not belong to the plaintiff. Petitioners have, in fact, purchased that land. The appellate court has illegally recorded the finding that since Paltu has died, the land cannot be held to belong
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to the defendants. Learned counsel has also referred to the site plan submitted along with the report of the Commissioner.
petitioners and perused the impugned order and other material available on record.
Perusal of the impugned order passed by the learned first appellate court dated 6.2.2015 indicates that defendant‐petitioners failed to prove that they purchased the land of khasra no.959 from Paltu. Paltu had died and no documents with regard to khasra no.959 are available. The learned appellate court has also taken note of the report of the Court Commissioner sent by the trial court and has held that neither the report so indicated, nor the defendants have proved that there was alternative way available to the plaintiff to access to his house. Plaintiff did not have any way to reach his house except the present way and he was residing in the present house for last 30 years. The kind of thing which the Court Commissioner indicated was that structure available at the disputed land was such, which can be put in time and there was no permanent structure. The Court Commissioner found a freshly dug foundation
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by the defendants and construction material was also found lying therein. There was thus an immense possibility of the way of the plaintiff being obstructed by the defendants. The findings recorded by the learned appellate court cannot, therefore, be said to suffer from any infirmity or perversity. There is no error apparent on the face of the record so as to warrant interference by this Court.
The writ petition is dismissed. Stay
application also stands disposed of.
RS/56
All corrections made in the judgement/order have been incorporated in the judgement/order being emailed. (Ravi Sharma,P.A.)
1 issue framed by the court
Whether the High Court should interfere with the appellate court's order granting temporary injunction against obstructing access through disputed land.
Govinda & Ors.
Mangu Ram
Mohammad Rafiq
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
