Rajasthan High Court - Jodhpur
Smt. Narbada Devi vs Municipal Board (2025:Rj-Jd:4466) on 23 January, 2025
Author: Birendra Kumar
Bench: Birendra Kumar
[2025:RJ-JD:4466]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 94/2024
Smt. Narbada Devi W/o Sh. Madanlal, Aged About 59 Years, R/o
Adarsh Colony, Railway Statio, Bilare, Raj.
----Appellant
Versus
Municipal Board, Bilara, Dist Jodhpur, Through Executive Officer,
Municipal Board, Bilara.
----Respondent
For Appellant(s) : Mr. Sanjeet Purohit
For Respondent(s) :
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
23/01/2025
1. This Civil Second Appeal is against the judgment and decree
dated 13.03.2024 passed by Additional District Judge, Jodhpur in
Regular Civil Appeal No.04/2021, whereby the learned lower
Appellate Court dismissed the appeal and upheld the judgment
and decree dated 30.09.2021 passed by learned Civil Judge Bilara,
District Jodhpur in Civil Suit No.106/2010.
2. The sole respondent - Municipal Board, Bilara issued notice
to the plaintiff-appellant to remove encroachment from the land
nearby 'rasta' which was not of the plaintiff.
3. Thereafter, the plaintiff filed Civil Original Suit No.106/2010
stating therein that the referred area of land was purchased land
of the plaintiff and by the side of the purchased land, there was a
strip of land and thereafter, 'rasta'. The plaintiff had applied for
allotment of that strip of land so that the same could not be
allotted to any other person to obstruct the exit and entrance from
[2025:RJ-JD:4466] (2 of 3) [CSA-94/2024]
the house to the 'rasta'. The said application was pending with the
authority when the notice was issued. The plaintiff has lost the
case before both the courts below.
4. Contention of learned counsel for the plaintiff-appellant is
that the trial court wrongly held that the strip of land was part of
'rasta' in spite of the fact that burden was placed on the
respondent to prove that the strip of land was part of 'rasta'.
5. The law is well settled that unless the plaintiff has got title
over the claimed land (i.e. strip of land), the plaintiff cannot
maintain a suit for permanent injunction. Mere pendency of the
application for allotment would not create any title or claim; only
the competent authority would decide this way or that way.
Therefore, the suit for injunction was itself not maintainable.
6. The following questions have been raised as substantial
question of law in this second appeal:-
"1. Whether the judgment and decree dated
30.09.2021 passed by the learned trial court without
appreciating the evidence and material available on
record in its true legal perspective just and valid?
2. Whether the findings recorded by the learned trial
court which are running contrary to the evidence
available on record perverse?
3. Whether the learned trial court was justified in
deciding the issue No.1 against the plaintiff and issue
No.2 in favour of the defendant?
4. Whether the adjudication on the issue No.1 and 3 is
sustainable in absence of any evidence on record to
establish that the strip land sought to be allotted is a
land of public way?
5. Whether the rejection of application filed under
Order 41 Rule 27 CPC by the learned lower Appellate
Court is justified?
6. Whether the judgment and decree dated 13.03.2024
passed by the learned lower appellate court without
considering the grounds raised in the memo of appeal
is justified?"
[2025:RJ-JD:4466] (3 of 3) [CSA-94/2024]
7. This Court does not find that the judgments of the two courts
below are perverse and running contrary to the evidence. Other
questions are mixed questions of law and fact, which cannot be
gone into in this second appeal.
8. Accordingly, this Civil Second Appeal stands dismissed as
devoid of any merit. If the application of the appellant for
allotment of land is still pending, that would be decided without
being prejudiced by the fact that the appellant has lost before the
civil court.
(BIRENDRA KUMAR),J
24-nitin/-
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