Dismissed

Bhanwaralal Bugalia v. Shankarlal

Rajasthan HC22 Jul 2024CMA/910/2024

Case brief

AI extract

What is this about?

This High Court dismissed an appeal preferring a challenge against a temporary injunction order. The court held that the injunction preventing encroachment was correctly granted based on mismatching land measurements found via a commissioner's report, and revoking it would hinder the main suit.

What did the court decide?

Appellant's appeal dismissed; lower order maintaining status quo affirmed; main suit to be disposed within eight months.

Bhanwaralal Bugalia Vs Shankarlal — Property and Title | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 910/2024

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Bhanwaralal Bugalia S/o Mohan Ram, Aged About 51 Years, R/o Bugalia Ki Dhani Altava Tehsil Makrana Dist Deedwana Kuchaman

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----Appellant

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Versus

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Shankarlal S/o Late Lichhman Ram, R/o Village Gudha Kheri Tehsil Makrana Dist Deedwana Kuchaman

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Chuka Devi W/o Late Lichhman Ram, Aged About 81 Years, R/o Village Gudha Kheri Tehsil Makrana Dist Deedwana Kuchaman

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----Respondents

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For Appellant(s)	: Mr. G.R. Punia, Sr. Adv. assisted by Mr. Rajesh Punia, Mr. Rajendra Prasad, Mr. Madan Lal & Mr. Sanjay
For Respondent(s)	: Mr. Narendra Thanvi Mr. Mahendra Thanvi
	Mr. Ashok Thanvi

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HON'BLE MR. JUSTICE KULDEEP MATHUR JUDGMENT

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22/07/2024

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The present civil misc. appeal has been preferred by the defendant-appellant under Order 43 Rule 1(r) of CPC read with Section 151 of CPC against the order dated 21.02.2024 passed by the learned Additional District Judge, Makrana, District Nagaur in civil misc. case No. 04/2024 (CIS No.04/2024) whereby the learned Additional District Judge has allowed the application filed by the plaintiff-respondents under Order 39 Rr. 1 & 2 read with Section 151 of CPC and has directed the parties to maintain status quo regarding the land in dispute.

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The facts in brief necessary for adjudication of the present civil misc. appeal are that the plaintiff-respondents filed a suit for injunction against the defendant-appellant alongwith an application under Order 39 Rr. 1 and 2 read with Section 151 C.P.C. before the learned court below. As per the plaintiffrespondents, one Smt. Rukma Devi W/o Ram Sukh Brahmin was having land ad-measuring 3441 sq. yards in her name. Out of the said piece of land, for a piece of land ad-measuring 1023.66 sq yards, Smt. Rukma Devi, executed a sale deed in favour of Gram Panchayat, Kheri Shila on 11.09.1996, for the purpose of construction of a school. However, Gram Panchayat, Kheri Shila did not raise any construction of school on the said piece of land. Thereafter, in the year 2019, as per the provisions of Rajasthan Panchayati Raj Rules 1996 the Gram Panchayat, Kheri Shila issued pattas from the same land which was donated by Smt. Rukma Devi for construction of school, i.e. Plot Nos.39, 40 and 41, in the name of Smt. Raju Devi W/o plaintiff-respondents- Shankar Lal. All the three pattas issued against Plot Nos.39, 40 and 41 were registered in the office of Sub-Registrar, Gachhipura on 27.10.2020.

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The plot so purchased by the defendant-appellant is situated on the western side ad-measuring 74 ft. of the above mentioned plots. In the suit for injunction filed by the plaintiff-respondents, it was averred that the defendant-appellant wanted to/has encroached over their residential plots and has threatened them to give up their possession of the aforementioned plots.

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Learned Court below after issuing notices, appointed Mauka Commissioner to produce a factual report regarding the

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possession/status of the disputed land in question. The Mauka Commissioner, after making necessary inspection of the disputed land, submitted a detailed report dated 19.01.2024. The Mauka Report submitted by the Commissioner has not been objected by the appellant-defendant before the learned Court below.

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The learned Court below thereafter, proceeded to hear the application filed by the plaintiff-respondents under Order 39 Rr. 1 & 2 read with Section 151 C.P.C., and vide detailed order dated 21.02.2024, directed the parties to maintain status quo of the land in question by holding that the comparative measurements of the land purchased by the plaintiff-respondents and the measurements of the land for which the pattas were issued in favour of Smt. Raju Devi W/o Shankar Lal (purchased by appellant-defendant) are not matching, a fact which was required to be examined by the Court.

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Learned counsel for the appellant-defendant vehemently contended that for allowing an application under Order 39 Rr. 1 and 2 read with Section 151 C.P.C., the plaintiff-respondents have to prove all the three issues for granting of injunction viz. prima facie case; balance of convenience; and irreparable loss whereas in the present case, plaintiff-respondents have not been able to prove all of the aforesaid issues. It was further submitted that from no stretch of imagination, the plaintiff-respondents can be restrained from using their own patta suda land and, therefore, the impugned order dated 21.02.2024 cannot be sustained in the eyes of law and therefore deserves to be quashed and set aside.

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Learned counsel further submitted that the defendantappellant has purchased the land from the original patta holder

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i.e. Smt. Rukma Devi and is enjoying uninterrupted possession over it whereas, plaintiff-respondents have purchased the said land from Gram Panchayat, Kheri Shila only in the year 2019. The question of defendant-appellant encroaching over the land of plaintiff-respondents does not arise at all. Learned counsel vehemently added to his submissions that only a satisfaction of a prima facie case in favour of the plaintiff-respondents, so recorded by the learned Court below, by itself is not sufficient to grant injunction. The other two elements for grant of injunction viz. irreparable loss; and balance of convenience should also be established by the Court while exercising judicial discretion in granting the relief of ad-interim injunction, pending the civil suit. In support of his arguments, learned counsel for the appellantdefendant has placed reliance on the following judgments:-

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Best Sellers Retail (India) Private Limited and Anr. Vs. Aditya Birla Nuvo Limited And Ors . reported in (2012) 6 SCC 792.

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Dalpat Kumar and Anr. Vs. Prahlad Singh and Ors. reported in (1992) 1 SCC 719.

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Kashi Math Samsthan and Anr. Vs. Shrimad Sudhindra Thirtha Swamy and Anr. reported in (2010) 1 SCC 689.

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Per Contra, learned counsel appearing on behalf of the plaintiff- respondents contended that the order dated 21.02.2024 passed by the learned Court below is just and does not suffer from any perversity or infirmity whatsoever. Learned counsel submitted that the dispute before the learned Court below only relates to the encroachment so made by the defendant-appellant over the patta suda land possessed by the plaintiff-respondents.

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Learned counsel further submitted that it is a settled law that the temporary injunction granted by the learned trial Court should not ordinarily be interfered by the Appellate Court by reappreciating the entire material available on record merely because another view is possible. In support thereof, learned counsel for the plaintiff-respondents has placed reliance on the following judgments:-

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Harischandra Narayan Maurya Vs. Rajendraprasad Dargahi Varma reported in 1997 (2) Civil Court Cases 391 (Bombay).

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Urban Improvement Trust, Jodhpur Vs. Smt. Sohni Devi & Anr. reported in 1997 (Suppl.) CCC 288 (Rajasthan).

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Satya Prakash & Anr. Vs. 1^st Additional District Judge & Ors. reported in 2002 (30 CCC 68 (Allahabad).

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Tanushree Basu & Ors. Vs. Ishani Prasad Basu & Ors. reported in 2008 (3) CCC 001 (S.C.).

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Gangubai Bablya Chaudhary & Ors. Vs. Sitaram Bhalchandra Sukhtankar & Ors. reported in AIR 1983 SC 742.

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The Hon’ble Supreme Court of India in the case of Seema Arshad Zaheer And Ors. Vs. Municipal Corp. of Greater Mumbai and Ors. reported in (2006) 5 SCC 282 was pleased to hold as under:-

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“The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff’s rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff’s rights is compared with or weighted against the need for protection of the defendant’s rights or likely infringement of the defendant’s rights, the

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balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff’s conduct is free from blame and he approaches the court with clean hands.”

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Having considered the facts and circumstances of the case, this Court finds that the plaintiff-respondents have filed a suit for injunction against defendant-appellant with the specific assertion that the defendant-appellant is bound to encroach over their residential Plot Nos.39, 40 and 41 issued by the Gram Panchayat, Kheri Shila. The learned Court below on the basis of report of Mauka Commissioner dated 19.01.2024 and while considering the other material available on record, has reached to a prima facie conclusion that the comparative measurements of the land purchased by the plaintiff-respondents and the measurements of the patta issued in favour of Smt. Rukma Devi, from whom the appellant-defendant had purchased the land, were not matching, a fact which was required to be examined by the learned Court below.

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This Court is of opinion that a revocation of the temporary injunction so granted in the present case, may amount to changing the dimensions/measurements of the land in question which would render the suit preferred by the plaintiff-respondents infructuous. In the opinion of this Court, to protect the existing nature/dimension/measurement of the land in question, the judicial discretion vested with learned Court below has rightly been exercised and the same does not call for any interference by this Court. Therefore, in the opinion of this Court, the impugned

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order dated 21.02.2024 passed by the learned Court below in the facts and circumstances of the case is absolutely impregnable.

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This Court thus, finds no reason to interfere with the order impugned dated 21.02.2024 passed by the learned Additional District Judge, Makrana, District Nagaur. The present civil misc. appeal is therefore, dismissed.

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In the peculiar facts and circumstances of the case, it is however, ordered that the learned Court below shall decide the civil suit for injunction filed by the plaintiff-respondents as expeditiously as possible but in any event not later than eight months from the date of this order.

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It is also made clear that no unnecessary/unwarranted adjournment shall be granted to the either parties for expeditious disposal of the civil suit pending before the learned Court below.

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(KULDEEP MATHUR),J

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23-TarunGoyal/-

Bhanwaralal Bugalia v. Shankarlal

Case brief

What is this about?

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Bhanwaralal Bugalia v. Shankarlal

Case brief

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