- (1.) THE petitioners-defendants have challenged the order dated 1.12.2007, passed by the Additional District Judge,(Fast Track) No.3, Jaipur City, Jaipur, (hereinafter referred to as the appellate court) in Civil Misc. appeal No. 11/2007(453/2007), whereby the appellate court, while allowing the appeal has set-aside the order dated 21.11.2007, passed by the Additional Civil Judge(J.D.), Jaipur City, Jaipur,(hereinafter referred to as the trial court).
(2.) WITH the consent of learned counsels for the parties, the petition is being decided finally at admission stage, the petition being pending since 2007. The short facts giving rise to the present petition are that the respondent no.1-plaintiff, has filed a suit before the trial court seeking permanent injunction restraining the petitioners-defendants from dispossessing him from the disputed property situated at the Amber Palace. The respondent-plaintiff also filed an application being No. 365/2007, seeking temporary injunction of similar nature under Or. XXXIX R. 1 and 2 before the trial court. The trial court vide the order dated 21.11.2007, dismissed the said application of the respondent-plaintiff. Being aggrieved by the said order, the respondent-plaintiff had preferred the appeal being No. 11/2007(453/2007), before the appellate court. The said appeal came to be partly allowed vide the impugned order dated 1.12.2007, whereby the appellate court restrained the appellants from dispossessing the respondent-plaintiff from the disputed premises, however, permitted the appellants to maintain and renovate from outside the said property in view of the Govt. Notifications dated 12.12.1974 and 16.9.1968. Being aggrieved by the said order passed by appellate court, the petitioners have preferred the present Petition under Art. 227 of the Constitution of India. This Court while hearing the learned counsels for the parties on the interim relief, had vide the order dated 4.2.2008, stayed the operation of the impugned order dated 1.12.2007, passed by the appellate court. The said order is continued till this date. It has been sought to be submitted by Addl. Advocate General Mr. Dinesh Yadav, for the petitioners that the disputed property is part and parcel of the Haveli Amber Mahal, which the State Govt. had decided to protect and renovate. According to Mr. Yadav, the trial court had rightly observed that the respondent-plaintiff had failed to prove any prima facie case in his favour with regard to the possession of the disputed property, and had not granted the injunction, however, the appellate court reversed the said order of trial court and granted the temporary injunction as prayed for by the respondent-plaintiff, without any evidence on record. According to Mr. Yadav, the impugned order being illegal, the same deserves to be set-aside. However, the learned senior counsel Mr. A.K.Bhandari, for the respondent-plaintiff pressing into service the provisions contained in the Rajasthan Monuments, Archaeological Sites and Antiquities, Act,1961(for short the Act), submitted that the disputed property does not fall within the definition of the Protected Monument and even otherwise there was nothing on record to show that the disputed property is a protected monument. According to him, the respondent-plaintiff is in possession of the said disputed premises by virtue of an agreement to sell dated 21.6.2005, executed by the legal representatives of one Azizuddeen, who had purchased the same from one Saieed Khan by registered sale-deed dated 2.9.1966, and hence the respondent-plaintiff being in lawful possession of the said property, the petitioners can not dispossess him without following the due process of law. Supporting the findings recorded by the appellate court, the learned senior counsel Mr. Bhandari has submitted that there being no perversity in the said order, this Court should not interfere with the same under Art. 227 of the Constitution of India.
(3.) AT the out-set,it is required to be noted that the trial court had dismissed the application of the respondent- plaintiff, seeking temporary injunction under Or. XXXIX R. 1 and 2 C.P.C., which order was set-aside by the appellate court vide impugned order dated 1.12.2007. However, the operation of the impugned order was stayed by this Court by detailed order dated 4.8.2008. Under the circumstances, as on today, there is no injunction operating in favour of the respondent-plaintiff or against the appellants-defendants. The said order dated 4.2.2008 passed by this Court has also not been challenged by the respondent before the higher forum and the same is continued for about four years till this date. Be that as it may, so far as the merits of the present petition are concerned, it clearly transpires that the disputed property which is allegedly part and parcel of the Amber Palace, was declared as a protected monument under the said Act in view of the Notifications dated 12.12.1974 and 16.9.1968. The learned counsel for the respondents has relied upon the registered sale deeds of 1935,1964 and 1966, however, the said sale deeds were executed prior to the issuance of the Notification of 1974 by the State Govt. under the provisions contained in the said Act. The respondent-plaintiff is claiming his possession on the basis of an alleged agreement to sell dated 21.6.2005, allegedly executed by the legal representatives of one late Azizuddeen, who according to him had purchased the same from one late Shri Saieed Khan by executing registered sale deed dated 26.5.1966. It will be a matter of evidence to prove whether the legal representatives of late Shri Azizuddeen had any authority or power to sell the disputed premises to the respondent-plaintiff. Even otherwise, it is settled legal position that an agreement to sell does not create any right, title or interest in the immovable property. Except the said agreement to sell, there is nothing on record to suggest that the respondent-plaintiff was in possession of the disputed premises. As against that, the petitioners have been able to prima facie show that the disputed premises is the part and parcel of the Amber palace, which has been declared as protected monument in view of the Notifications dated 12.12.1974 and 16.9.1968. Under the circumstances, the trial court had rightly held that the respondent-plaintiff had failed to prove that he was in possession of the disputed premises. The findings and reasoning given by the appellate court, being contrary to the documents on record, the same deserve to be set-aside and the petition deserves to be allowed. In view of the above, the order dated 1.12.2007, passed by the appellate court is set-aside . The petition stands allowed accordingly. ;