Balwant Singh vs Civil Judge,Barmer And Anr
2023 Latest Caselaw 6162 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3253/2018

Balwant Singh S/o Uttam Singh, B/c Rajput, R/o Gida, Teh. Gida, Dist. Barmer.

----Petitioner Versus

1. Civil Judge, Barmer Raj.

2. Kheem Singh S/o Shivnath Singh, B/c Rajput, R/o Gida, Teh. Gida, Dist. Barmer.

                                                                ----Respondents


For Petitioner(s)         :    Mr. H.S. Balot
                               Mr. PRS Balot
For Respondent(s)         :    Mr. M.L. Khatri



             HON'BLE DR. JUSTICE NUPUR BHATI

                                    Order

22/08/2023

(1) The present writ petition has been filed under Articles 226

and 227 of the Constitution of India with the following prayers:-

"(a) accept this writ petition & allow the writ petition petitioner and set aside the order Annex.5 dated 01.03.2017 passed by Civil Judge, Barmer (Raj. In Civil Misc. application No.30/2017 Khem Singh Vs. Balwant Singh & order dated 22.01.2018 Annex.6 passed by Addl. District Judge No.1, Barmer (Raj.) in Civil Appeal against order no.08/2017 Balwant Singh vs. Khem Singh.

(b) That kindly allow the present petitioner to construct in his land & shall not be restrained from construction in his boundary wall."

(2) The brief facts of the case are that the respondent No.1 filed

a suit for permanent injunction against the present petitioner on

21.02.2017 in the Court of Civil Judge, Barmer (for short, 'the trial

Court'). In the suit, it was averred that an agricultural land was

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purchased by the No.2 along with the present petitioner and five

other purchasers, namely, Jabbar Singh, Gayad Singh, Kalyan

Singh, Devi Singh and Devi Singh vide sale-deed dated

21.10.2005. The land purchased was a joint property of all the

purchasers and an application was moved before the concerned

Tehsildar for conversion of agricultural land for residential

purpose.

(3) On 26.08.2014, the Tehsildar converted the land from

agricultural to residential. The respondent No.2 filed application

for TI under Order 39 Rules 1 & 2 read with Section 151 CPC

along with the suit with the averment that the converted land was

a joint property of all the purchasers and it was further averred

that the petitioner is encroaching 17 ft. of land in the mutually

divided share of respondent No.1 and it was prayed that the

petitioner be prohibited for such encroachment to the share of the

respondent No.1.

(4) The petitioner filed reply to the application for TI denying the

contents of encroachment and illegal construction.

(5) The application for TI, filed by the respondent No.2 was

allowed vide order dated 01.03.2017. Being aggrieved of the

same, the petitioner preferred an appeal before the learned

Additional District Judge, No.1, Barmer (for short, 'the Appellate

Court'), which was rejected vide judgment dated 22.01.2018.

(5) The petitioner, being aggrieved of the orders dated

01.03.2017 and 22.01.2018, has preferred the present writ

petition.

(6) Learned counsel for the petitioner submits that since the

petitioner is a registered owner of the disputed land, thus, he

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cannot be prohibited from his own possession and peaceful

enjoyment of the land and hence, the impugned orders deserve to

be quashed and set aside.

(7) He further submits that all the purchasers of the land are

mutually occupying portions of land from long period as per their

convenience upon which boundaries have also been constructed

and thus, the petitioner could not be denied of enjoying peaceful

possession of the land and the plea of encroachment is absolutely

unjust.

(8) Learned counsel for the petitioner also submits that

petitioner has raised construction inside the boundary, which was

in possession of the petitioner for a long time. However, the

learned trial Court, without considering this fact, passed the

impugned order and the learned Appellate Court also affirmed the

same.

(9) Learned counsel for the respondent No.2, while refuting the

submissions made by the learned counsel for the petitioner,

submits that as the property in question has not yet been divided,

therefore, the share of the property in question cannot be

ascertained at this stage and thus, the impugned orders have

rightly been passed.

(10) Heard learned counsel for the parties and perused the

material available on record.

(11) This Court finds that the learned trial Court has categorically

held that the fact that the petitioner has encroached upon the

share of the property of the respondent No.2 is effective and the

construction raised by the petitioner was also beyond the

possession of the petitioner. Thus, the application for TI filed by

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the respondent No.2 has rightly been allowed. The learned

Appellate court also did not find prima facie case in favour of the

petitioner and found that if temporary injunction is not granted in

favour of the respondent No.2, then he will suffer irreparable loss

and also found balance of convenience in favour of the respondent

No.2. and thus, while concurring with the findings of the learned

trial Court, affirmed the order of the learned trial Court. It is well

settled that the Court should not interfere with the concurrent

findings recorded by the Courts below.

(12) In view of the above, this Court does not find any merit to

interfere with the impugned orders, particularly when there are

concurrent findings of both the Courts below. The writ petition is,

therefore, dismissed.

(13) The stay application and all other pending applications, if

any, also stand dismissed.

(DR. NUPUR BHATI),J 212-skm/-

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