Bacchu Singh S/O Shri Ramgopal vs State Of Rajasthan Through ...
2021 Latest Caselaw 3551 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

           S.B. Civil Miscellaneous Appeal No. 1295/2021
Bacchu Singh S/o Shri Ramgopal, R/o Village-Kareempur, Tehsil -

Saipau, District- Dholpur (Raj.)                                    ----Appellant

                                    Versus

1.       State Of Rajasthan Through District Collector, Dholpur,

         District - Dholpur, Rajasthan.

2.       Tehsildar, Saipau, Tehsil-Saipau, District- Dholpur.

3.       Sonver S/o Ramgopal, R/o Village- Kareempur, Tehsil-

         Saipau, District - Dholpur (Raj.)                       ----Respondents

For Appellant(s) : Mr.Manish Kumar Sharma, Adv.

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

10/08/2021

This appeal has been filed by the appellant challenging the

order dated 08.04.2021, whereby the Court below has dismissed

the application filed by the appellant under Order 39 Rule 1 & 2

CPC.

Learned counsel for the appellant submitted that the

appellant had filed a suit for declaration and of permanent

injunction in respect of the property in dispute.

Learned counsel submitted that the appellant was having

ownership and possession of three shops, one gallery and land

behind the shops since 1960 and one shop was run by him and

two were let out on rent.

(2 of 4) [CMA-1295/2021]

Learned counsel submitted that due to construction of

National Highway, the shops owned by the appellant were required

to be raised from 3 to 3.5 feet and as such, the appellant, when

restrained by the respondents--Government Officials i.e. Tehsildar

and Patwari, he had to file a civil suit before the Civil Court along

with an application for temporary injunction.

Learned counsel submitted that the Court below has wrongly

dismissed the application for temporary injunction.

Learned counsel submitted that even if there was some

dispute about title of the property, the possession alone was

required to be considered for the purpose of grant of temporary

injunction.

Learned counsel submitted that the Apex Court in the case of

Rame Gowda (Dead) by LRs. Vs. V. Varadappa Naidu

(Dead) by LRs. & Anr. [(2004) 1 SCC 769] has laid down the

law that the "settled possession" gives right to a person and even

the rightful owner can recover only by taking recourse of law.

On the strength of said judgment, learned counsel submitted

that the parameters, which are required as per law laid down by

the Apex Court, have not been taken into account and only on the

basis of disputed title, the injunction application should not have

been dismissed.

Learned counsel for the appellant further submitted that the

Court below has wrongly taken into account the issue of land

belonging to the State Government and further the acquisition

proceedings regarding compensation, etc. were not required to be

looked into.

I have considered the submissions made by learned counsel

for the appellant and perused the material available on record.

(3 of 4) [CMA-1295/2021]

This Court finds that the Court below, while considering the

prima facie case in favour of the appellant, has recorded a finding

that the land in question bearing old Khasra No.879 and new

Khasra No.1202/878 was "Abadi land" and in respect of acquisition

proceedings, a claim was made for commercial rates and as such,

the Competent Officer, in the judgment dated 30.03.2016,

recorded a finding that construction made in the land bearing

Khasra No.878 was in government land and as such, the objection

for claiming compensation was rejected.

This Court finds that the Court below has also taken into

account the inspection report dated 12.02.2021, wherein the land

in question was bearing Khasra No.1202/878 and the same was

recorded as 'Siwaichak Bhoomi' - government land and the

appellant was found to be in possession as trespasser in the said

land.

The submission of learned counsel that even if the appellant

was trespasser, the prima facie case was required to be considered

on the basis of peaceful possession, suffice it to say by this Court

that for considering the prima facie case in favour of the appellant,

the Court below had to see as in what capacity, the appellant was

occupying the government land.

This Court finds that if the appellant was not having rightful

claim over the disputed property, the question of grant of any

injunction did not arise in his favour.

This Court also finds that the suit in the present case has

been filed for declaration and permanent injunction and if the

appellant will be able to prove his title over the property, the

suitable view can be taken by the Court below after considering

the entire evidence.

(4 of 4) [CMA-1295/2021]

This Court finds that the Court below has not committed any

error in rejecting the application filed by the appellant.

Accordingly, the present misc. appeal is dismissed.

(ASHOK KUMAR GAUR),J Parul Sharma/Preeti Asopa/5

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