Lrs Of Bhikha Puri vs Mool Sa Thakur
2022 Latest Caselaw 6370 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 76/2022

1 Lrs Of Bhikha Puri, S/o Bheru Puri, B/c Puri, Since Deceased Through His Legal Representatives-

2. Poonam Devi W/o Late Bhikha Puri, Aged About 70 Years, R/o Vaidhya Magharam Colony, Near Towari Woolen Mill, Outside Jassusar Gate, Bikaner.

3. Heera Puri S/o Late Bhikha Puri, Aged About 42 Years, R/o Vaidhya Magharam Colony, Near Towari Woolen Mill, Outside Jassusar Gate, Bikaner.

4. Saroj W/o Sattu Giri D/o Late Bhikha Puri, Aged About 46 Years, R/o Janta Payau, Near Khad Factory, Bikaner

5. Premlata W/o Mohan Giri D/o Late Bhikha Puri, Aged About 36 Years, R/o Village Jaitsar Mandi, Ward No. 8, Vijay Nagar, Sri Ganganagar.

----Appellants Versus

1. Mool Sa Thakur S/o Bhanwar Gehlot, R/o Narsingh Ji Mandir, Mohalla, Outside Jassusar Gate, Bikaner.

2. Bulaki S/o Ramdev, B/c Gehlot, Saknaaye, R/o Outside Jassusar Gate, Bikaner.

3. Dhan Ji S/o Ramdev, B/c Gehlot, Saknaaye, R/o Outside Jassusar Gate, Bikaner.

4. Ramdev @ Muniya S/o Chatru, B/c Gehlot, R/o Maliyon-

Ka-Mohalla, Bikaner.

5. Shiv Kumar S/o Bheekh Ji, B/c Gehlot, R/o Near Hanuman Temple, Maliyon-Ka-Mohalla, Bikaner.

6. Moolsa S/o Bheekh Ji, B/c Gehlot, R/o Maliyon-Ka-

Mohalla, Bikaner.

7. Ramu S/o Trilok, B/c Gehlot, R/o Outside Jassusar Gate, Bikaner.

8. Shiv S/o Bhudh Ji, B/c Gehlot, R/o Outside Jassusar Gate, Bikaner.

                                                                ----Respondents


For Appellant(s)         :     Mr. Sanjay Nahar
For Respondent(s)        :     Mr. Varun Goyal





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          HON'BLE MR. JUSTICE RAMESHWAR VYAS

                                Judgment

02/05/2022

The present civil second appeal has been preferred under

Section 100 of the Code of Civil Procedure, 1908 by the legal

representatives of original plaintiff - Bhikhapuri (appellants

herein) against impugned Judgment and Decree dated 07.01.2022

passed by the Additional District Judge No. 7, Bikaner in Civil

Appeal Decree No. 74/2020 (C.I.S. No. 17/2015) titled as "LR's of

Bhikhapuri Vs. Mool Sa Thakar & ors." vide which first appeal

preferred by the appellants against the Judgment & Decree dated

31.10.2014 passed by the Additional Civil Judge No. 1, Bikaner in

Civil Regular Suit No. 394/2009 titled as "Bhikhapuri Vs. Mool Sa

Thakar & ors." dismissing the suit for injunction filed by the

plaintiff (appellants herein), was dismissed.

Heard learned counsel for the parties on admission and

perused the judgments impugned passed by both the courts

below.

The brief facts of the case are that original plaintiff - Late

Bhikhapuri filed a suit seeking injunction against the defendants

(respondents herein) with the averments that the plaintiff and his

ancestors were residing on the disputed land in the capacity of

owners for last more than fifty years. In the northern side of the

land, crematorium ground of Mali community is situated. The

members of Mali community tried to take disputed land in their

possession and make it as part of crematorium ground. They

demolished boundary wall on the western side despite resistance

of the plaintiff. When plaintiff attempted to reconstruct boundary

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wall on 05.03.2014, defendants restrained him to raise boundary

wall. In the above circumstances, suit for injunction was filed. In

the written statement, it was averred that there was no wall

existing between crematorium ground and disputed property as

claimed. The ownership and possession of the plaintiff over the

subject land was also disputed. It was submitted that disputed

property was given to one Balti Baba for taking care and

subsequently, it was given to Tiku Puri for maintaining it. After

death of Tiku Puri, Bhikha Puri started living there and he assured

the community people to look after the complete crematorium

ground, upon which he was allowed to reside in the rooms

constructed there. The trial court, after due trial, dismissed the

suit of the plaintiffs-appellants. As per findings of the trial court,

plaintiff failed to prove his possession over the subject land as

owner. On the other hand, the trial court came to the conclusion

that this property was given to Balti Baba for maintaining it.

Being aggrieved with judgment and decree rejecting the suit of

the plaintiff, first appeal was filed by the legal representatives of

the original plaintiff (appellants herein), which was also dismissed

by the first appellate court vide judgment dated 07.01.2022,

which is impugned herein.

Learned counsel for the plaintiffs-appellants submitted that

disputed property was in the possession of the appellants. They

could not be evicted from the suit property without following due

process of law. They have every right to get injunction against

defendants-respondents for restraining them from dispossessing

him. Both the judgments and decrees passed by the courts below

suffer from omission of consideration of relevant evidence and

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specially looking to the fact that the defendants failed to lead any

evidence in their favour. The plaintiff was not required to prove his

title over the land in question.

Learned counsel for the respondents-defendants submitted

that the plaintiffs have failed to prove their possession over

disputed property in the capacity of owner. From the evidence on

record, it was proved that disputed property was given to one Balti

Baba for taking care and subsequently, it was given to Tiku Puri

for maintaining it. After death of Tiku Puri, Bhikha Puri started

living there and he assured the community people to look after

the complete crematorium ground, upon which he was allowed to

reside in the rooms constructed there. Both the courts below

have rightly appreciated the evidence available on record in right

perspective and passed the judgments impugned, which do not

call for any interference by this Court.

Having heard learned counsel for the parties and after

perusing the judgments passed by both the courts below, this

Court is of the opinion that the trial court did not commit any error

in rejecting the suit filed by the plaintiff seeking injunction in the

form of mandatory and prohibitory. The party who seeks

injunction has to come before the Court with clean hands,

whereas, in the present case, plaintiff claimed injunction with the

averments that the suit property was given to them in gift.

However, plaintiff failed to prove this fact by adducing any

evidence. On the other hand, from the statements made by the

plaintiff and his witnesses in the cross-examination, it reveals that

they were caretaker of the disputed property used for the

crematorium ground of Mali community. Looking to the

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concurrent findings recorded by both the courts below, no

substantial question of law is involved in this appeal for

consideration. The plaintiff has not come with clean hands. Merely

on the basis of the oral statement of the plaintiff regarding his

rights over disputed property without producing any documentary

evidence, injunction cannot be granted in his favour. The trial

court dismissed the suit in consonance with facts and law. The

judgment and decree passed by the trial court has been affirmed

by the appellate court. No ground exists to entertain this second

appeal.

Dismissed accordingly.

(RAMESHWAR VYAS),J

19-Samvedana/-

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