Azure Power Forty Three Private ... vs Javed Khan
2021 Latest Caselaw 11716 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 581/2021

Azure Power Forty Three Private Limited, 5th Floor, Southern Park, D-Ii, Saket Palace, New Delhi-110017, Site Office Village Daudsar, Tehsil And District Bikaner

----Appellant Versus Javed Khan S/o Khaleel Ahmed, Ward No. 16, Jat Colony, Gharsana, Dis. Sriganganagar

----Respondent

For Appellant(s) : Mr. Narendra Thanvi.

Mr. Mahendra Thanvi.

For Respondent(s) : Mr. Muktesh Maheshwari.

Mr. Aidan Choudhary.

HON'BLE MR. JUSTICE ARUN BHANSALI

Judgment

28/07/2021

This appeal is directed against the order dated 29/5/2021

passed by Addl. District Judge No.4, Bikaner, whereby, the

application filed by the respondent-applicant-plaintiff under Order

XXXIX Rule 1 and 2 CPC has been allowed and temporary

injunction has been granted restraining the appellant-company

from executing any work in the land indicated in para 2 of the

application and to maintain status quo.

The suit was filed by the respondent-plaintiff under Section 6

of the Specific Relief Act, 1963 ('the Act, 1963') and for

permanent injunction inter alia with the submissions that plaintiff

has 1/6th share in the land ad measuring 18.94 hectares situated

in village Daudsar, Patwar Halka, Jamsar comprised in Khasra no.

(2 of 14) [CMA-581/2021]

215, 421, 458, 709/420, 710/417, 711/422 and 792/459. It was

claimed that on the said land, the plaintiff had his possession and

cultivation. It was alleged that defendant company is engaged in

developing solar project at village Daudsar and other places and

around the land of the plaintiff it is executing the work of solar

project, resulting in lands getting converted into non-agriculture

from agriculture.

It was alleged that the defendant on 18/3/2021 has taken

possession of the land; the plaintiff is deprived of cultivating the

land, putting it to use and developing the same. Indications were

made that in the land in question, Akram, Jalaludin, Noor Jahan,

Baby, Barkat Khan and Hazi Khan have share, which was joint and

undivided, however, the defendant company without partition

among the land holders by metes and bounds took possession

belonging to Akram, Jalaludin, Noor Jahan, Baby, Barkat Khan and

Hazi Khan and has started work of constructing solar plant. It was

also alleged that the defendant was working against the Rules and

Rajasthan Solar Energy Policy, 2020. The plaintiff was entitled to

return back of his land immediately. It was also indicated that

plaintiff is entitled to permanent injunction against the defendant

not to act against the parameters for protection of environment

and without taking other security measures. It was claimed that

issues of balance of convenience and irreparable injury are also in

his favour as he cannot be deprived of use of his land. It was

indicated that the suit has been filed within limitation as

possession was taken on 18/3/2021 and within six months the suit

has been filed.

                                          (3 of 14)                    [CMA-581/2021]


     Based   on   the    above       averments,          it     was   prayed   that

possession of the land be restored and permanent injunction be

granted.

Along with the suit, an application under Order XXXIX Rule 1

and 2 CPC was filed seeking temporary injunction during the

pendency of the suit. In the application after reiterating the

averments made in the plaint, it was prayed that till the decision

of the suit, without partition of the land by metes and bounds, the

respondent should not execute any work on the land.

The defendant-appellant filed an application under Order VII

Rule 11 CPC seeking rejection of the plaint. However, the said

application was rejected on 8/4/2021 against which a revision

petition is pending consideration before this Court.

A reply to the application under Order XXXIX Rule 1 and 2

CPC was filed denying the averments made in the application. It

was contended that the plaintiff-applicant never had possession of

the property and he has not been dispossessed at any point of

time, therefore, the suit and the application were liable to be

dismissed.

In additional pleas, it was claimed that the suit was barred

under Section 207 of the Rajasthan Tenancy Act, 1955 ('the Act,

1955') and Section 41 (h) of the Act, 1963 and on that count the

application was liable to be dismissed.

On facts, it was indicated that out of 18.94 Hectares of

agricultural land, Jalaludin, Hazi Khan, Barkat Khan, Noor Jahan,

Bhapia had 5/6th share and legal representatives of Chotu had

1/6th share. Bhapia gifted his 1/6th share to Barkat Khan and the

khatedars executed registered lease deeds executed between July,

(4 of 14) [CMA-581/2021]

2019 to February, 2020 for a period of 30 years in favour of

defendant company. It was claimed that possession of the entire

undivided 1/6th share of the land belonging to Barkat Khan was

handed over to the company on 15/8/2020 and for rest 1/6 th

share the lease deed was to be executed and since then the

defendant was in possession of the property. It was claimed that

the defendant has executed huge project for setting up solar

power plant including civil work etc. Along with reply large number

of documents emphasizing the fact that plaintiff was never in

possession of the suit property were filed and that the entire land

was/is in possession of the defendant and that in case any

injunction is granted, the defendant would suffer irreparable

injury, the plaintiff had no cause inasmuch as the suit itself was

not maintainable and balance of convenience was in its favour and

prayed that the application be dismissed.

The trial court after hearing the parties came to the

conclusion that the plaintiff claims 1/6 th share in the disputed

property and the company having registered lease deed qua 5/6 th

share claims possession of entire 18.94 hectares of land. The

plaintiff is khatedar of the land and from photographs and

documents it appears that on the disputed land including other

land, on which solar project of defendant company has been

established and working, wherein, the construction and boundary

wall work is over, and as such the company has claimed its work

etc. on entire suit land and other Khasras. Barkat Khan

transferred his 1/6th share to Amrit Pal Sandhu, who on 7/3/2021

transferred the same to the plaintiff and as to whether the

possession of the land was transferred on 15/8/2020 to the

(5 of 14) [CMA-581/2021]

company or the plaintiff was dispossessed on 18/3/2021 was a

matter of evidence and as the plaintiff was found owner of 1/6 th

share in the land and several issues raised in the suit requires

leading of evidence, no definite conclusion can be drawn at this

stage and as the plaintiff had share in the property, there was

prima facie case in his favour.

While considering the aspects of balance of convenience and

irreparable injury, the trial court came to the conclusion that the

balance of convenience was in restraining the company from

working and from maintaining status quo without there being any

partition by metes and bounds as in case there is any change in

the suit property, the purpose of filing the suit would come to and

end and the plaintiff would suffer more, which may not be

compensated in terms of money and consequently granted

temporary injunction, as noticed hereinbefore.

Feeling aggrieved, the present appeal has been filed.

Learned counsel for the appellant made vehement submissions

that from a bare reading of the plaint, it was apparent that the

plaintiff was never in possession of the suit property and the basic

requirement of Section 6 of the Act i.e. dispossession without

adopting due process of law has not even been alleged in the

plaint.

Submissions were made that despite specific case of the

appellant that the plaintiff was never in possession of the suit

property as claimed by him and sufficient material in this regard

was produced on record, the trial court failed to return any

finding, even prima facie that the plaintiff was in possession of the

suit property at any point of time.

(6 of 14) [CMA-581/2021]

Submissions were made that the lease deeds were executed

in favour of the appellant over a period of time and the appellant

has also executed huge work over the land in question when the

plaintiff purchased the land on 7/3/2021 and looking to the nature

of appellant's possession, the plaintiff could not have taken

possession of the property, the suit has been filed by claiming that

within 11 days i.e. on 18/3/2021 he has been dispossessed. The

possession on the face of it was only paper possession and for lack

of any proof with regard to taking possession/dispossession, and

trial court having failed to record any finding on this aspect, there

was apparently no prima facie case in favour of the plaintiff and,

therefore, no injunction could have been granted.

Submissions were made that order passed by the trial court

is absolutely vague inasmuch as the appellant has been restrained

from executing the work at the site, which has resulted in plaintiff

seeking to interfere in all kinds of activities being undertaken by

the company by making complaints with the police and revenue

authorities and the said authorities for no reason, based on the

vague order passed by the trial court, is interfering with the work

of the appellant company, resulting in huge day to day loss to the

company, which financial loss in a suit of present nature cannot be

compensated.

Submissions were made that the trial court did not deal with

the aspect of balance of convenience and irreparable injury and in

a cryptic manner has jumped to the conclusion on the said

aspects, which has resulted in grave injustice to the appellant, and

therefore also the order impugned deserves to be quashed and set

aside.

(7 of 14) [CMA-581/2021]

Submissions were made that the plaintiff has share of about

7.80 Acres of land and even presently more than that land at the

site is lying vacant, on which right of the plaintiff can be

protected. Submissions were also made that appellant is prepared

to keep the said portion vacant till the disposal of the suit.

During the course of submissions, based on the above

assertion regarding the availability of vacant land, on the direction

of the court, additional affidavit has been filed indicating that

about 7.80 Acres of unused land situated in various khasras is

available and that essentially the work pertaining to HT cabling,

which needs to cross through Khasra no. 421 & 711/422, its

testing and finishing work at PSS were left to be done. A map

indicating the available unused land has also been placed on

record.

It is also submitted that no proof whatsoever regarding

possession of the plaintiff was placed on record except for the

copy of Jamabandi and sale deed in favour of the plaintiff.

Learned counsel for the respondent vehemently contested

the submissions. It was submitted that the land in question i.e.

1/6th share was transferred by Barkat Khan to one Amrit Pal

Sandhu on 20/7/2020 and said Amrit Pal Sandhu transferred the

said 1/6th share to the plaintiff by registered sale deed dated

7/3/2021, the plaintiff came in possession of the land, however on

18/3/2021 he has been dispossessed from the land in question

and, therefore, the plaintiff was forced to file suit under Section 6

of the Act for restoration of his possession.

Submissions have been made that plea raised regarding the

suit being barred under Section 207 of the Rajasthan Tenancy Act

(8 of 14) [CMA-581/2021]

and the fact that plaintiff allegedly was not in possession over the

suit property were incorrect and the trial court has rejected the

application under Order VII Rule 11 CPC. Submissions have been

made that admittedly the appellant only has right in 5/6 th portion

of the land, which is of joint khatedari of several persons including

the plaintiff and qua 1/6 th share it has no right and as such the

appellant is not entitled to any relief from this Court.

Submissions have been made that as the respondent-plaintiff

has been dispossessed from the land in question and the

appellant-company is proceeding with changing the nature of the

entire land, the trial court was justified in granting injunction.

Submissions have also been made that once the issue of prima

facie case was decided in favour of the plaintiff, the finding on

issues pertaining to balance of convenience and irreparable injury

as recorded by the trial court, cannot be faulted inasmuch as once

the plaintiff has ownership over 1/6 th share in the property, he

cannot be dispossessed of the same without due process of law

and till such time the suit is decided, the suit property is required

to be protected.

Submissions were also made that at best the trial court may

be directed to expedite the decision on the suit and the order

passed by the trial court does not call for any interference and the

appeal deserves to be dismissed.

Under the directions of the court, the respondent-plaintiff

has also filed an additional affidavit and has claimed that he was

handed over possession of land in Khasra no. 421 only. A map

showing the portion claimed to be in possession of the plaintiff

before alleged dispossession has also been placed on record.

(9 of 14) [CMA-581/2021]

I have considered the submissions made by leaned counsel

for the parties and have perused the material available on record

along with the additional affidavits as filed under the directions of

the Court.

The fundamental aspect relevant at the stage of application

under Order XXXIX Rule 1 and 2 CPC is regarding the right of the

plaintiff in the suit property. It is an admitted case of the appellant

company also that they have lease deeds qua 5/6 th share in the

land ad measuring 18.94 hectares. The appellant company has

also not indicated as under what right, it could remain in

possession of the entire land including 1/6 th share belonging to the

plaintiff.

However, as the nature of the suit is such, wherein, the

plaintiff has alleged dispossession without due process of law from

a portion of the land, the above aspect, presently, in view of the

appellant's claim being in possession of the entire land irrespective

of having lease deed qua 5/6th share in the land, is not of much

relevance as it is well settled that in a suit under Section 6 of the

Act, the issue of title is irrelevant.

Large amount of pictures, which have been produced on

record, show permanent and temporary constructions at the site

and not only this, in fact the appellant company relying on a

'Mauka Fard' dated 29/5/2020, wherein, the Patwari Jamsar has

made identification/demarcation, claims to be in possession of in

all as much as 795 hectares of land including the suit land i.e.

18.94 hectares of land, as such the fact that on 7.3.2021 when

the plaintiff purchased the land, it prima facie cannot be believed

that he was unaware of the fact of appellant's huge presence at

(10 of 14) [CMA-581/2021]

the site and, therefore, the claim made by the plaintiff, though

missing in the pleadings before the trial court, but by way of

additional affidavit pursuant to the directions of the Court, that he

was handed over possession of land specifically in Khasra no. 421,

cannot be believed.

The submissions made that as there was no partition, the

plaintiff has right in the entire land ad measuring 18.94 hectares

cannot be countenanced beyond a point inasmuch as similarly, the

appellant company also would have bonafide claim in the entire

land having lease deeds in its favour qua 5/6 th portion of the land

ad measuring 18.94 hectares.

In the above circumstances, the fact regarding possession of

the plaintiff and his alleged dispossession, would require

adjudication by the court during trial, once the parties lead

evidence on the said aspect as the same is the core question to be

decided in the suit and presently based on the material available

on record, this Court would not hazard recording a finding on the

said aspect.

In these circumstances, the interest of the parties to the suit

have to be protected during the pendency of the suit and as such

the fact that the trial court found a prima facie case in favour of

the plaintiff, essentially on account of his title and claim of

possession, cannot be faulted, despite the fact that the suit is

under Section 6 of the Act.

Finding a prima facie case in favour of the plaintiff is not the

end of the matter as the court is then required to record finding

on balance of convenience and irreparable injury. The trial court,

despite the fact that there was lot of material produced by the

(11 of 14) [CMA-581/2021]

appellant company indicating the status of the land in question

and the fact that it had raised huge construction and had invested

huge funds, did not advert to the said aspect, though had

specifically noticed the fact that the company had executed

construction work and constructed boundary wall. Non

consideration of the material available on the said aspect and

jumping to the conclusion regarding balance of convenience and

irreparable injury by the trial court cannot be approved. Not only

this, the trial court then went to pass the following order:

"&vkns'k& 20- vr% izkFkhZ dk mDr vLFkk;h fu'ks/kkKk dk izkFkZuk i= fo:) vizkFkhZ Lohdkj fd;k tkdj bl vk"k; dh vLFkk;h fu'ks/kkKk tkjh dh tkrh gS fd rk&QSlyk ewy okn vizkFkhZ dEiuh izkFkZuk i= dh pj.k la[;k nks esa of.kZr Hkwfe ftlesa izkFkhZ dk [email protected] fgLlk gS] esa dksbZ dk;Z u djs o ekeyk gktk esa ;Fkkor~ fLFkfr cuk;s j[ksaA"

(emphasis supplied)

By the said order, the court ordered that on the land

indicated in para 2 of the plaint i.e. entire 18.94 hectares of land

in which the plaintiff had 1/6th share, no work should be executed

and that status quo be maintained.

Passing of above order, when admittedly over the part of the

land ad measuring 18.94 hectares, the appellant company had

constructed its power plant and was in the process of completing

the same, ordering for stopping of entire work cannot in any

manner be justified or approved inasmuch as, as noticed

hereinbefore, 5/6th share in the said land is on lease with the

appellant company.

The events subsequent to passing of the order, which have

been placed on record by both the parties reflect the consequence

(12 of 14) [CMA-581/2021]

of the said order, wherein, entire work of the appellant has been

sought to be put on hold by the revenue authorities with the aid of

police authorities seeking to implement the order passed by the

trial court.

Besides the fact that interference by the police and revenue

authorities for purportedly implementing an injunction, in which

proceedings they are not parties, cannot be appreciated, passing

of a blanket order without considering its implications, cannot be

sustained.

As the appellant has undertaken huge construction work and

invested huge funds, in case it is not permitted to

continue/complete its work, the same necessarily would result in

irreparable injury to the appellant and in those circumstances, it

cannot be said that the balance of convenience lies in favour of

the plaintiff alone. However, it also cannot be said that the plaintiff

is not entitled to any protection.

From the additional affidavits, which have been produced on

record, while the plaintiff has claimed his entire so called

possession in Khasra no. 421, which aspect, looking to the

existing construction over the said Khasra, has already been found

doubtful hereinbefore, the appellant has indicated vacant land ad

measuring 7.80 Acre in the map (Annex.2) filed along with

additional affidavit, which is connected by road as well and have

undertaken not to use the aforesaid 7.8 hectares unused land and

to keep the same intact.

Though learned counsel for the respondent-plaintiff disputed

the fact that the appellant company requires or was in possession

of the portion of Khasra No. 421, as indicated in the map and

(13 of 14) [CMA-581/2021]

made submissions that there was lot of temporary construction by

placing removable iron shelters, the said aspect cannot be

determined at this stage.

In over all circumstances of the case, the interest of justice

would be served in case the appellant-company is directed to

maintain status quo pertaining to the land ad measuring 7.80 Acre

as indicated as 'unused' by them in map (Annex.2) filed with the

additional affidavit and to undertake that in case any finding is

returned by the trial court that the plaintiff was in possession/in

possession of any specific portion of land, and orders for delivery

of possession of the said portion, they would deliver vacant

possession of the said portion to the plaintiff.

Consequently, the appeal is partly allowed. The order passed

by the trial court dated 29/5/2021 is set aside to the extent the

appellant company has been prohibited from undertaking any

work on the land indicated in para 2 of the application for

temporary injunction. Instead, it is directed that the appellant-

company shall maintain status quo pertaining to the land ad

measuring 7.80 Acres indicated as 'unused' by it in the map

(Annex.2) filed with the additional affidavit and it would be

required of the appellant to file an undertaking before the trial

court within three days that in case any finding is returned by the

trial court in the suit that the plaintiff was in possession/in

possession of any specific portion of land and the court orders for

delivery of possession of the said portion, it would deliver vacant

possession of the said portion to the plaintiff. The order for

maintaining status quo passed by the trial court shall also be

understood in the above context only.

(14 of 14) [CMA-581/2021]

Looking to the nature of the dispute, it is expected of the

trial court to proceed with the matter with utmost expedition.

No order as to costs.

(ARUN BHANSALI),J

baweja/-

Powered by TCPDF (www.tcpdf.org)