- (1.) THE present appeal arising out of the order dated 30.7.08 passed by the Addl. District Judge (Fast Track) No. 6, Jaipur City, Jaipur (hereinafter referred to as 'the trial court') in Civil Misc. Application No. 9/07, whereby the trial court has dismissed the application of the appellant-plaintiff seeking temporary injunction against the respondent-defendant under Order XXXIX Rule 1 and 2 CPC.
(2.) THE short facts of the case of the appellant-plaintiff are that the appellant has filed the suit before the trial court against the present respondent-defendant No.1 and other three defendants seeking declaration to the effect that the defendants Nos. 2 to 4 be declared as the owners of the property bearing Khasra No. 150 by way of adverse possession and that the defendant No.1 did not have any right over the land bearing Khasra No. 150, and further seeking permanent injunction against the defendant No.1 restraining it from taking over the possession of the said land bearing Khasra No. 150 and from demolishing any structure constructed on the said land bearing Khasra No. 150. THE appellant-plaintiff also filed an application seeking temporary injunction against respondent-defendant No.1 under Order XXXIX Rule 1 and 2 of CPC seeking similar injunction as prayed for in the suit. As per the case of the appellant, the predecessor company of the appellant namely M/s. Caltex (India) Ltd. had taken on lease the plot of land admeasuring North-South 175 feet and East-West 120 Feet situated in the village Nahargarh in front of ?Jal Mahal? Amer Road, Jaipur in the year 1962-63, from late Shri Bhag Chand Bakshi. The said Shri Bhag Chand Bakshi having expired, his legal representatives were impleaded as defendant Nos. 2 to 4 in the suit. It is further case of the appellant that during the settlement operations, the said land was assigned Khasra Nos. 145, 146/1, 146/2, 147, 148, 149, 150, and 152 totally admeasuring 17579 sq. meters. The said late Shri Bhag Chand Bakshi had filed an application on 14.2.72 before the Asstt. Settlement Officer, Amer for issuing 'Parcha' Settlement in his favour in respect of the said lands. The Asstt. Settlement Officer called for the office report from which it had transpired that the said lands including Khasra No. 150 had been recorded in the khatedari of Kapoor Chand S/o Shri Jawahar Lal and Khasra No. 150 had been recorded as sawai-chak lagani in the old as well as new revenue record. The said Asstt. Settlement Officer thereafter allowed the said application. It is further the case of the appellant that the said late Shri Bhag Chand Bakshi had applied for permission to construct hotel on the aforesaid land which was accorded by the concerned authorities of the State Govt. after giving exemption under the Urban Land Ceiling Act, 1976 vide Government Notification dated 30.7.94 in favour of defendant Nos. 2 to 4.According to the appellant, the predecessor company of the appellant company namely M/s. Caltex (India) Pvt. Ltd. after having taken on lease the said lands in the year 1962 had obtained No Objection Certificates from the concerned authorities for the establishment of petrol pump on the said lands including the land bearing Khasra No. 150 and the said Bhag Chand Bakshi had again executed a registered lease-deed dated 31.12.73 in favour of the said M/s. Caltex (India) Pvt. Ltd. It is the further case of the appellant that under the pretext that the land bearing Khasra No. 150 was recorded as sawai-chak and as such the appellant-plaintiff company was in unauthorised occupation thereof, the present respondent-defendant No.1 entered upon the said land bearing Khasra No. 150 illegally and demolished 80 feet long old southern boundary wall and also removed the material kept thereon. According to the appellant-plaintiff, the respondent-defendant No.1 thereafter had informed the appellant-plaintiff vide letter dated 23.8.02 that the petrol pump fell within 60 feet of the road line shown in the master plan and that the land bearing Khasra No. 150 had vested in JDA. The appellant-plaintiff therefore, had filed a reference under Section 83(8)(b) of the Jaipur Development Authority Act before the appellate Tribunal, which reference came to be partly allowed vide order dated 9.7.04, permitting the respondent No.1 to dispossess the appellant after following the procedure contained in Section 72 of the JDA Act. The appellant-plaintiff thereafter served the notice to the respondent-defendant No.1 and filed the suit, and also the application seeking the temporary injunction as mentioned herein above. The said T.I. Application being No. 9/07 came to be dismissed by the trial court vide the impugned order dated 30.7.08, against which the present appeal has been filed by the appellant-plaintiff. The learned senior counsel Mr. Sudhanshu Kasliwal for the appellant, taking the court to the order passed by the Asstt. Settlement Officer submitted that the application of Late Shri Bhag Chand Bakshi for declaring the lands including the land bearing Khasra No. 150 as his personal property was allowed by the Asstt. Settlement Officer and the said land bearing Khasra No. 150 being part and parcel of the lands allotted to the predecessor of the appellant i.e. M/s. Caltex (India) Pvt. Ltd., the said Shri Bhag Chand Bakshi had become the owner of the said land in question, however his name had remained to be entered in the revenue records as the owner. He further submitted that after the death of said Bhag Chand Bakshi, the State Government vide notification dated 30.7.94 had also granted permission to the legal heirs of the said Bhag Chand Bakshi i.e. the defendant Nos. 2 to 4 in the suit granting permission to construct hotel on the lands including the land bearing Khasra No. 150. Relying upon the order dated 9.7.04 passed by the appellate authority in Reference No. 278/02 filed by the appellant under Section 89 of the JDA Act, Mr. Kasliwal has submitted that the respondent-JDA had filed reply in the said proceedings stating interalia that the appellant was in illegal possession of the said land bearing Khasra No.150. According to Mr. Kasliwal even the person was in illegal in possession of any land he could not be dispossessed without following the due process of law, however the respondent had illegally entered upon the said land bearing Khasra No. 150 and demolished 80 feet long southern boundary wall and was also trying to dispossess the appellant from the land bearing Khasra No. 150 and therefore, the suit as well as the T.I. Application was filed before the trial court. Mr. Kasliwal vehemently submitted that the trial court without appreciating the evidence on record and without considering the prima facie case of the appellant-plaintiff dismissed the application by passing the impugned order and therefore, the present appeal deserves to be allowed. Mr. Kasliwal has relied upon the decision of the Apex Court in case of Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors. (1992) 1 SCC, 719 and of this court in case of Sukkha Singh & Anr. Vs. Mahal Singh & Anr. AIR 2003 Rajasthan 21 in support of his submissions. However the learned counsel, Dr. Ram Kishan Sharma, for the respondent-JDA supporting the order passed by the trial court submitted that the appellant-plaintiff was not in possession of the land bearing Khasra No. 150 as alleged and that the said land was entered into revenue record as sawai-chak land. He further submitted that there was nothing on record to suggest that the said land bearing Khasra No. 150 was part of the land leased out to the predecessor company of the appellant-company by late Shri Bhag Chand Bakshi and that the said late Shri Bhag Chand Bakshi was the khatedar of the said land. He further submitted that the trial court considering the fact that the said land bearing Khasra No. 150 having been entered in revenue record as sawai-chak land and the name of the respondent-JDA having been entered into ?jamabandi?, and considering the fact that the defendant Nos. 2 to 4 had not filed any suit claiming ownership by adverse possession, has rightly dismissed the application of the appellant-plaintiff seeking temporary injunction against the respondent-JDA.
(3.) AT the outset, it is required to be noted that though the appellant-plaintiff has filed the suit against the present respondent and three others, the present appeal is filed only against the respondent-JDA-original defendant No.1, without joining the other defendants i.e. defendants Nos. 2 to 4 as party-respondents in the present appeal. On the query put by the court, the learned counsel Mr. Kasliwal submitted that since the injunction was sought only against the respondent-defendant No.1, other defendants were not joined as party-respondents in the present appeal. The said submission of Mr. Kasliwal is not acceptable for the simple reason that the appellant-plaintiff having filed the suit for declaration and permanent injunction against all the defendants, all the defendants would be necessary as well as the proper parties in T.I. Application as well as in the present appeal arising out of the order passed in T.I. Application. The present appeal therefore, is held to be bad by non-joinder of necessary parties. Further it is also very surprising that the appellant-plaintiff has filed the suit seeking declaration to the effect that the defendant Nos. 2 to 4 be declared as owners by adverse possession in respect of the disputed land bearing Khasra No. 150. This court fails to understand as to how such a relief could be prayed for in the suit by the appellant, when the defendant Nos. 2 to 4 have not claimed any such ownership by adverse possession against the respondent-defendant JDA in respect of the said land, either by filing separate suit or by impleading themselves as party-plaintiffs in the present suit. It is needless to say that the party claiming continuous, uninterrupted, open and hostile possession for more than 12 years against the true owner could claim ownership by adverse possession, and that such a relief could not be asked by the third party in the suit filed against the true owner as well as against the parties in whose favour such prayer is sought. It is also pertinent to note that when the appellant-plaintiff prayed for such relief in the suit, it would imply that the plaintiff had accepted the respondent-defendant No.1 as the true owner of the land in question, as the adverse possession could be claimed only against the true owner of the property in question. In the opinion of the court, such a suit itself does not appear to be prima facie maintainable in the eye of law, more particularly when the persons in whose favour the decree for adverse possession has been sought, have not come forward with such a plea against the respondent-defendant No.1. Having said that the court is of the opinion that when the suit itself is not prima facie maintainable, the appellant-plaintiff would not be entitled to claim any relief by way of temporary injunction in such suit. So far as the impugned order is concerned, the trial court in detail has considered the evidence on record and held that the plaintiff had failed to establish any prima facie case in its favour as regards the possession of the land bearing Khasra No. 150 in question. The trial court has also considered the other factors like balance of convenience and irreparable loss against the appellant-plaintiff and dismissed the said application. This court does not find any illegality or infirmity in the impugned order passed by the trial court. It is true that while considering the question of prima facie case, the court should not confuse prima facie case with prima facie title, as laid down by the Apex Court and our court in the cases relied upon by Mr Kasliwal. However, the trial court has very categorically held that the plaintiff had failed to establish his prima facie case as regards the possession of the land bearing Khasra No. 150 and has not confused the prima facie case with prima facie title. Hence, the said judgments are not helpful to the appellant. The documents relied upon by the learned counsel Mr. Kasliwal also are not helpful to the appellant, inasmuch as there is nothing on record to show that the order passed by the Asstt. Settlement Officer in respect of the land bearing Khasra No. 150 was implemented in favour of late Shri Bhag Chand Bakshi, predecessor of the defendant Nos. 2 to 4. The Government Notification also prima facie appears to have been issued in favour of the defendant Nos. 2 to 4 for granting permission to construct hotel. If the appellant-plaintiff was in possession of the said land bearing Khasra No. 150, which according to the appellant was part of the lands on which the petrol pump was being run, there was no question of Government granting permission to construct hotel to the defendant Nos. 2 to 4. Be that as it may, it would be a matter of evidence to be led by the appellant to prove the said documents relied upon by it. It also transpires from the order dated 9.7.04 passed by the appellate Tribunal in Reference Case No. 278/02 that the respondent-JDA was permitted to dispossess the appellant-plaintiff after following the procedure under Section 72 of the JDA Act and the respondent-JDA having exercised such powers had already dispossessed the appellant-plaintiff when the suit was filed. Hence the appellant-plaintiff was not in possession of the disputed land bearing Khasra No. 150 on the date of filing of the suit or of filing of T.I application. The trial court having considered all the prima facie material before it, has rightly dismissed the T.I. Application of the appellant-plaintiff. In that view of the matter, this court does not find any substance in the present appeal. The appeal being devoid of merits deserves to be dismissed and is accordingly dismissed. ;