- (1.) BY way of present petition filed under Article 227 of the Constitution of India, the petitioner-original plaintiff has challenged the order dated 1.6.2012 passed by the Addl. District and Sessions Judge No.3,Jaipur Metropolitan Jaipur (hereinafter referred as the "appellate court") in Civil Misc. Appeal No.36 of 2012, whereby the appellate court has confirmed the order dated 11.5.2012 passed by the Addl. Civil Judge (J.D.) No.4, Jaipur Metropolitan, Jaipur (hereinafter referred as the "trial court"), in Civil Misc. Application No. 572 of 2011.
(2.) THE short facts giving rise to the present petition are that the petitioner-plaintiff has filed suit seeking permanent injunction against the respondents No. 1 to 3 (original defendants) restraining them from raising construction on the land in question. As per the case of the petitioner, the petitioner had purchased plot No.28 on 11.12.1979 from Mitra Grah Nirman Sahkari Samiti Ltd., Jaipur and after undergoing all formalities, the Patta along with site plan was issued in favour of the petitioner. The petitioner thereafter constructed his house on the said plot. There was an open space on the eastern side of the said plot which was being used as public road and the respondents No.1 to 3 making illegal encroachment on the said road wanted to put up construction. The petitioner therefore filed the suit and also filed an application for temporary injunction under Order 39 Rules 1 and 2 of CPC. The said application was resisted by the respondents No.1 to 3 by filing reply denying the allegations and averments made in the application and further contending interalia that the respondent No.1 had purchased the said land in question in the year 1980 and JDA had allotted him the Patta in respect of the said land. The trial court vide order dated 11.5.2012 dismissed the application of the petitioner for temporary injunction, against which an appeal being No.36 of 2012 was preferred before the appellate court. The appellate court dismissed the said appeal vide the impugned order dated 1.6.2012 by holding interalia that the petitioner-appellant had failed to prove prima facie case in his favour. Being aggrieved of the said orders, the petitioner has preferred the present petition under Article 227 of the Constitution of India. It has been submitted by learned counsel Mr. MC Jain for the petitioner that the respondents No.1 to 3-original defendants have made encroachment on the public road and are trying to put up illegal construction thereon. According to him, if the injunction as prayed for is not granted, the suit filed by the petitioner would become infructuous. He further submitted that the petitioner has already given notice to the competent authority for issuing alleged patta in favour of the respondents No. 1 to 3 and the petitioner would be challenging the same by separate proceedings, however, in the meantime the concerned respondents are required to be restrained from putting up any construction on the land in question. Having regard to the submissions of learned counsel for the petitioner and to the impugned orders passed by the trial court as well as by the appellate court, it transpires that the courts below have not granted the temporary injunction as prayed for by the petitioner, on not having been satisfied on the establishment of prima facie case in favour of the petitioner. It further appears prima facie that the land in question on which the concerned respondents want to put up construction was allotted to the said respondents by the Mitra Grah Nirman Sahkari Samiti Ltd., Jaipur which is not the party before the court. In any case, it would be a matter of evidence as to whether such an allotment was legal or not. However, there being the concurrent findings of facts recorded by the courts below as regards the ownership and possession of the land in question, this court exercising its limited jurisdiction under Article 227 of the Constitution of India is not inclined to interfere with the said findings, which even otherwise do not appear to be illegal or perverse. In that view of the matter, the petition deserves to be dismissed and is accordingly dismissed.;