Jarnail Singh vs Shaali Ram
2021 Latest Caselaw 17062 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

...

S.B. Civil Misc. Appeal No. 858/2021

Jarnail Singh S/o Ajayab Singh, by caste Jat Sikh, Aged about 71 years, Resident of Chak 1 NWM, Tehsil Anoopgarh, District Sriganganagar (Raj.).

----Appellant/Plaintiff Versus

1. Shaali Ram S/o Riju Ram, by caste Choudhary, Resident of Tayara (Padhaal) At Present Post Badhihada, Tehsil & District Kangda (H.P.)

2. Sub-Registrar, Anoopgarh, District Sriganganagar (Raj.).

3. Tehsildar (Revenue), Anoopgarh, District Sriganganagar (Raj.).

4. State of Rajasthan-State, District Collector, Sriganganagar (Raj.).

----Respondents/Defendants

For Appellant(s) : Mr. R.K. Thanvi, Senior Advocate with Mr. Narehdra Thanvi & Mr. Mahendra Thanvi.

For Respondent(s) : Mr. Muktesh Maheshwari (caveator).

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Order

16/11/2021 Heard learned counsel for the appellant/plaintiff.

Issue notice to the respondents.

Since, the respondent No.1/defendant is represented

through the learned counsel Mr. Muktesh Maheshwari by filing

caveat on his behalf, let the notices be issued to the other

respondents. Rule is made returnable within a period of four

weeks.

(2 of 7) [CMA-858/2021]

Heard learned Senior Counsel Mr. R.K. Thanvi appearing on

behalf of the appellant/plaintiff as well as learned counsel Mr.

Muktesh Maheshwari appearing on behalf of the respondent No.1/

defendant in caveat on the prayer for grant of interim relief.

Learned counsel for the appellant/plaintiff stated that with

the suit for specific performance of the contract, an application

under Order 39 Rule 1 & 2 read with Section 151 of the CPC

seeking injunction has been filed by the appellant/plaintiff, inter

alia, with the averments that an agreement to sale has been

executed by the respondent No.1/defendant in favour of the

appellant/plaintiff and at that time, possession of the land in

question has also been handed over to the appellant/plaintiff and

since then, the appellant/ plaintiff is in possession over the land in

dispute. It is also stated that the learned Trial Court has wrongly

rejected the application aforesaid seeking injunction vide its

impugned order dated 23.07.2021. He further stated that

although it was admitted by the learned Trial Court that whether

the agreement to sale is false or fabricated, this point can be

decided in the suit itself and in the application for interim

injunction, it cannot be decided. It was also admitted by the

learned Trial Court that whether the suit land was a Government

land (jdckjkt) or not and this point cannot be decided at this stage

but despite of that, the point of prima facie case has not been

found in favour of the appellant/plaintiff and, therefore, the

impugned order has been passed against the spirit of law laid

down by Hon'ble the Supreme Court and this Court. Learned

counsel also stated that the learned Trial Court has decided the

issue of prima facie case against the appellant/plaintiff on the

ground that the plaintiff is an encroachee upon the Government

(3 of 7) [CMA-858/2021]

land; that even an encroachee cannot be dispossessed without

adopting due process of law. In support of his arguments, learned

counsel for the appellant/plaintiff has referred to and relied upon

the following judgments:-

(1) In the case of Ram Nath Sao @ Ram Nath Sahu since

deceased through LR's & Ors. Vs. Goberdhan Sao since

deceased through LR's & Ors., reported in 2017 DNJ (SC)

262;

(2) In the case of Sirajuddin @ Vajir Miyan Vs. Abdul Gaffar &

Ors., reported in 2015 (1) WLC (Raj.) 448;

(3) In the case of Ranjodh Singh Vs. Chanduram & Ors.,

reported in R.R.T. 2001 (2) 818; and

(4) In the case of Prataprai N. Kothari Vs. John Braganza,

reported in RLW 1999 (2) SC 292.

On the other hand, learned counsel Mr. Muktesh Maheshwari

appearing on behalf of the respondent No.1/defendant in caveat

has vehemently and fervently opposed the arguments advanced

by the learned Senior Counsel on behalf of the appellant/plaintiff

and stated that the disputed land was temporarily allotted to the

respondent No.1/defendant under the Rajasthan Colonisation

(Allotment of Government land to Pong Dam Oustees in the

Rajasthan Canal Colony), Rules, 1972 (in short, "the Rules of

1972" hereinafter) and as per Rules 5 & 6 of the Rules of 1972,

the land in dispute cannot be transferred. He further stated that

the allotment as made in favour of the respondent No.1/

defendant has been cancelled by the State Government. It is also

stated that Section 41(e) of the Specific Relief Act, 1963 says

that:-

(4 of 7) [CMA-858/2021]

"41. Injunction when refused.- An injunction cannot be granted -

......................

(e) to prevent the breach of a contract the performance of which would not be specifically enforced;

................."

Learned counsel Mr. Maheshwari further stated that as per

the law laid down by this Court in the cases of Gurdeep Singh Vs.

Special Judge, Pong Dam Oustees Matters, Sriganganagar,

reported in RLW 1998(3) Rajasthan 1526 and Pahalwan Singh

Raisikh Vs. LR's of Vishambhar Das Nai & Ors., reported in 2017

(2) DNJ (Raj.) 954, the application filed by the appellant/plaintiff

under Order 39 Rule 1 & 2 read with Section 151 CPC has rightly

been rejected by the learned Trial Court because there is no legal

right accrued in favour of the appellant/plaintiff on the basis of so

called agreement to sale; that as per the Revenue record, the land

in question is a Government land (jdckjkt) and the concerned

authorities of the State Government has initiated proceedings for

dispossession of the appellant/plaintiff and in this matter, the

respondent No.1/defendant (caveator) has nothing to do.

Having regard to the arguments advanced by both the sides

and after careful reading of the judgments cited by both the sides,

this Court is of the opinion that the learned Trial Court do not

committed any error in rejecting the application of the

appellant/plaintiff Jarnail Singh filed under Order 39 Rule 1 & 2

read with Section 151 CPC because it is an admitted position that

the agreement to sale was executed by the respondent

No.1/defendant Shaali Ram and Shaali Ram was not the owner of

the property; the land was temporarily allotted to him under the

(5 of 7) [CMA-858/2021]

Rules of 1972 and as per Rule 5 and Rule 6 (iii) and (iv) of the

Rules of 1972, "the allottee shall not have any alienable or

transferable rights in the land and shall not transfer or alienate the

land to any other person in any manner, i.e., by sale, mortgage,

gift, transfer, lease or otherwise" and as per Section 41 (e) of the

Specific Relief Act, an injunction cannot be granted in relation to

breach of such type of contract.

Principally, I am agree with the law laid down by the co-

ordinate Bench of this Court in the cases referred to and relied

upon by the learned counsel for the appellant/plaintiff but since

the facts and circumstances of the present case are different, no

relief can be granted to the appellant/plaintiff on the basis of the

above citations in the present case.

It is also pertinent to mention here that in the case of Ram

Nath Sao @ Ram Nath Sahu (supra), it was decided that the relief

of injunction can be granted on settled possession without title

and question of title shall left open till the decision of the suit.

Similarly, in the case of Sirajuddin @ Vajir Miyan (supra),

both the sides claimed their title over the disputed property and it

was held that the controversy shall be decided in the main suit

after evidence of both the sides and looking to the facts and

circumstances of the case, it was directed that both the parties

shall maintain the status-quo till the disposal of the suit; whereas,

in the present case, the respondent No.1/defendant clearly stated

that the land was allotted to him temporarily and as per Rule 6(iv)

of the Rules of 1972, the respondent No.1/defendant shall have no

right to transfer the land in question.

In the case of Ranjodh Singh (supra), the respondent No.3

had failed to establish that he is a member of the Scheduled Caste

(6 of 7) [CMA-858/2021]

and the plaintiff was in possession over the land in dispute and in

the facts and circumstances of the case, it cannot be said that the

plaintiff is a trespasser; whereas, in the present case, as per

arguments advanced by the learned counsel for the respondent

No.1/defendant (caveator) and provision of law as well as

judgments cited by the learned counsel for the respondent

No.1/defendant (caveator), it is prima facie established that the

land in question was a Government land ( jdckjkt) and the

proceedings for dispossessing the appellant/plaintiff had already

been initiated by the Tehsildar, Anoopgarh and notice to show

cause as issued against the appellant/plaintiff, a copy of the same

has also been placed for the Court's perusal, therefore, in that

view of the matter, I am of the considered view that for eviction of

the appellant/plaintiff, procedure of due process of law has not

been adopted by the competent authority. However, in the interest

of justice, the appellant/plaintiff can raise all the issued before the

competent authority.

In the case of Prataprai N. Kothari (supra), it was held that a

person having long continues possession can protect the same by

seeking injunction against any person other than the true owner;

even the owner of property can get back his possession only by

due-process of law. In the present case, the appellant/plaintiff has

prayed for granting of injunction against the true owner of the

land in question, i.e., the respondents No. 2, 3 & 4.

Apart from the above, it was held by the co-ordinate Bench

of this Court in the case of Pahalwan Singh Raisikh (supra) as

relied upon by the learned counsel for the respondent

No.1/defendant (caveator) that allotment of land to the Pong Dam

Oustees was barred by law and in the case of Gurdeep Singh

(7 of 7) [CMA-858/2021]

(supra), it was held by the co-ordinate Bench of this Court that

the land allotted under the Rules of 1972 cannot be transferred by

way of agreement to sale because these are against the conditions

of allotment and the agreement to sale was liable to be cancelled.

It is also pertinent to mention here that the full bench of

Delhi High Court in the case of Chandu Lal Vs. Municipal

Corporation of Delhi reported in AIR 1978 Delhi 174, vide Head

Note "F", it was held that before invoking the jurisdiction of the

Court to seek temporary injunction, the petitioners are bound to

show that they have a legal right and that there was an invasion

of that right. In the present case, it cannot be said that any of the

right of the appellant/plaintiff has been invaded.

In view of the discussion foregoing, the appellant/plaintiff

have no prima facie case in his favour for grant of interim relief till

the disposal of the present appeal. The stay application (No.

1157/2021) is dismissed accordingly.

(DEVENDRA KACHHAWAHA),J 25-Mohan/-

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