Dismissed

Mohammad v. Raju and Ors.

Rajasthan HC9 May 2018CSA/270/2015

Case brief

AI extract

What is this about?

In this second civil appeal, the High Court refused to interfere with orders partially decreeing a suit for permanent injunction. The Court upheld a lower decision granting limited protection against dispossession while proceedings challenging the defendant's patta were pending.

What did the court decide?

The High Court dismissed the appeal, holding that the Trial Court's order protecting the plaintiff from dispossession via due process met the ends of justice.

Mohammad Vs Raju and Ors. — Property and Title | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR.

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S.B. CIVIL SECOND APPEAL NO. 270 / 2015.

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MOHAMMAD, AGE 60 YEARS S/o Karim Bux, Caste Musalman, R/o Aasawara, Tehsil Bhadesar, District CHITTORGARH (Raj.).

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----Appellant/Plaintiff Versus

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RAJU S/o Shri Bhura, Caste Khatik,

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SMT. BHAGWANI D/o Varda, Caste Khatik,

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DHANNA RAM S/o Shri Kawal Chand, Caste Tak, - (Deleted)

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ISHWAR S/o Smt. Bhagwani (Mother), Caste Khatik,

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All R/o Aasawara, Tehsil Bhadesar, District CHITTOGRARH (RAJ.)

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----Respondents/Defendants _____________________________________________________ For Appellant(s) : Mr. Usman Ghani.

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JUSTICE DINESH MEHTA

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Judgment

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09/05/2018

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The present appeal under Section 100 of the Code of Civil Procedure has been filed by the appellant-plaintiff against the judgment and decree dated 28.07.2015 passed by the Additional

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(2 of 5)

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[CSA-270/2015]

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District Judge, Nimbahera, District Chittorgarh (hereinafter referred to as the “Appellate Court”) in Civil Appeal No. 13/2009 whereby, the appeal filed by the appellant against the judgment and decree dated 11.05.2009 passed by the Civil Judge (Junior Division), Mandpiya, District Chittorgarh (hereinafter referred to as the “Trial Court”) in Civil Original Suit No. 30/2008 titled as “Mohammed Vs. Raju & Ors.” partially decreeing the suit of the plaintiff, has been rejected.

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The facts, in nutshell, needful for the purpose of present appeal are that the appellant-plaintiff filed a suit for permanent injunction against the defendants, with the prayer that they may be restrained from dispossessing him from the possession of plot in dispute.

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The learned Trial Court framed the following issues:-

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“¼01½ vk;k oknh fo:) izfroknhx.k bl vk”k; dh LFkkbZ fu’ks/kkKk izkIr djus dk vf/kdkjh gS fd okni= ds iSjk la-01 esa of.kZr IykWV ij izfroknhx.k fdlh izdkj dk vfrdze.k ugha djsa] oknh ds d`f’k midj.k o vU; lkeku ckgj ugha Qsads o mldks csn[ky ugha djsa o mi;ksx&miHkksx esa n[kyankth ugha djsa]

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djkosa \ &&&oknh

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¼02½ vk;k fookfnr IykWV ij izfroknhx.k uktk;t dCtk dj y s aos rks oknh iqu% dCtk izkIr djus dk vf/kdkjh gS \ &&&oknh

¶25

¼03½ vk;k oknh dk okn okn dkj.k ds vHkko esa fujLr fd;s tkus ;ksX; gS \ &&&izfroknhx.k

¶26

¼04½ vk;k oknh }kjk okafNr vuqrks’k ij i;kZIr U;k; “kqYd vnk ugha fd;s tkus ls okni= pyus ;ksX; ugha gSa \ &&&izfroknhx.k

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(3 of 5)

¶28

[CSA-270/2015]

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¼05½ vk;k oknh }kjk okni= feF;k vk/kkjksa ij izLrqr fd;s tkus ls izfroknhx.k ekufld o vkfFkZd {kfr ds :i esa 10]000@& :i;s izkIr djus ds vf/kdkjh gS a \ &&&izfroknhx.k

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¼06½ vuqrks’k A^^

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While deciding the issues No.1 and 2, the learned Trial Court has found that the defendant No.2 is having a duly issued patta in her favour, whereas the plaintiff is only having long posession and as such, permanent injunction, as prayed cannot be granted to the plaintiff. However, the Trial Court partially decreed the suit and granted injunction that the plaintiff shall not be dispossessed, without adopting due process of law.

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The plaintiff, feeling aggrieved of the said judgment and decree dated 11.05.2009, preferred an appeal, which was registered as Appeal No. 13/2009 and the same came to be rejected by the Appellate Court, vide judgment and decree dated 31.03.2015.

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Mr. Usman Ghani, learned counsel for the appellant-plaintiff, challenging the judgments impugned, submitted that the learned Trial Court as well as the learned Appellate Court have erred in decreeing the suit of the plaintiff-appellant only in part. He contended that in the facts of the present case, the appellant was entitled for perpetual injunction in his favour. Mr. Ghani contended that as far as ‘patta’ granted in favour of the defendant No.2 – Bhagwani is concerned, he has allegedly challenged the grant of patta in her favour and the matter is pending consideration before

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(4 of 5)

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[CSA-270/2015]

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this Court. He argued that if ultimately, the proceedings for challenging grant of patta to the defendant No.2 is culminated in his favour and if the Court holds that the plaintiff-appellant is entitled for grant of patta, in light of his old possession, the impugned judgments and decree would impair his rights, as during the period interregnum, the defendant No.2 will scoop out the appellant.

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Having heard learned counsel for the appellant-plaintiff and upon perusal of the judgments impugned, this Court does not find any reason to interfere in the matter.

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It is an admitted fact that the appellant-plaintiff does not any ‘patta’ in his favour, whereas, the defendant No.2 – Bhagwani is having a patta. The Trial Court has passed the decree that the plaintiff-appellant shall not be dispossessed, except by adopting due process of law. If the proceedings undertaken by the plaintiffappellant challenging the issuance of the ‘patta’ to the defendant No.2 – Bhagwani are decided in plaintiff’s favour, and subsequent there to, any patta is issued in his favour, then the question of dispossessing the plaintiff would become redundant. But as long as patta is in favour of defendant No. 2 is there, no blanket injunction/stay can be granted.

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In view of the overall facts and circumstances obtaining in the present case, the judgment and decree as passed by the Trial Court does not call for any interference, as the same perfectly meets the ends of justice and the appellant’s rights have been duly protected.

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(5 of 5)

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[CSA-270/2015]

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Neither any case is made out to interfere in the matter, nor

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does the present appeal, involve any substantial question of law .

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The appeal, therefore, fails.

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(DINESH MEHTA), J.

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/Mohan/101

Mohammad v. Raju and Ors.

Case brief

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What did the court decide?

Mohammad v. Raju and Ors.

Case brief

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