R.S. Chauhan, J. - (1.) THE petitioner -plaintiff is aggrieved by the order dated 19.7.2012, passed by the Additional District & Sessions Judge, Baran whereby the learned Judge has set aside the order dated 8.5.2012 passed by the Civil Judge (Jr. Div.), Mangrol, District Baran, wherein the learned Magistrate had granted a temporary injunction in favour of the petitioner -plaintiff under Order 39 Rules 1 & 2 CPC.
(2.) THE brief facts of the case are that the petitioner -plaintiff, Gopi Chand, filed a suit for permanent injunction against the respondents -defendants with a prayer to restrain the defendants from opening any bid regarding the land in dispute in Khasra No. 271, Rakba 9.33 Hectare, and in Khasra No. 273/3101, Rakba 0.32 Hectare, total Rakba 9.65 Hectare, situated in Village Bohat, Tehsil Mangrol, Dist. Bundi, under Khata No. 804, Khatedar Temple Shri Gordhan Nathji Virajman, Nathdwara, and to allow the petitioner to cultivate the same after depositing the amount as per the agreement dated 1.5.1981. According to the plaint, one Gulab Singh had illegally encroached upon the suit property. Therefore, the Bhandari of Shrinathji Bhandar, Kota, entered into an agreement with the petitioner on 1.5.1981, to the effect that if the petitioner gets rid of Gulab Singh's encroachment, then the land in dispute would be given to him for cultivation on Munafa Kashta @ Rs. 6000/ - per year. Alongwith the suit, the petitioner also filed an application under Order 39, Rules 1 & 2 CPC for temporary injunction. The respondents -defendants filed reply to the T.I. application. By order dated 8.5.2012, the learned trial court allowed the T.I. application, and restrained the defendants from opening any bid, and allowed the petitioner to cultivate the land in dispute after depositing the amount as per the agreement. Being aggrieved by the order dated 8.5.2012, the respondents -defendants filed an appeal before the learned Judge. By order dated 19.7.2012, the learned Judge allowed the appeal filed by the respondents -defendants, and set aside the order dated 8.5.2012. Hence, this petition before this court. Mr. Rohan Jain, the learned counsel for the petitioner has raised the following contentions before this court: firstly, relying on the cases of District Club Bundi & Ors. v. Madhukar Gupta [1997 (3) RLW 1825] and Hemraj v. Executive Officer, Nagar Palika Indragarh [1999 WLC (Raj.) UC 319], the learned counsel has contended that power of the appellate court while hearing an appeal against the order passed under Order 39, Rules 1 & 2 CPC is a limited one. At the stage of hearing of appeal, the appellate court is merely concerned in seeing whether a prima facie case does exist in plaintiff's favour, or balance of convenience lies in his favour, or any irreparable loss has been caused to him or not? At this initial stage, the learned appellate court cannot examine the issue of jurisdiction, or any other technical issue of law. However, in the present case, the learned Judge has entered into the question of jurisdiction. Since the question of jurisdiction is a mixed question of fact and law, he cannot express his opinion at this stage. In fact, the said issue should have been left to be framed by the learned trial court and to be adjudicated by it. Therefore, the learned Judge has overstepped his jurisdiction.
(3.) SECONDLY , the learned Judge has not considered the fact that according to the agreement dated 1.5.1981, certain rights were bestowed upon the petitioner which have been breached by alleged action of the respondents -defendants wherein they are threatening to dispossess from the agricultural land, and to auction the same. Therefore, the learned Judge has failed to consider existence of a strong prima facie case in favour of the petitioner. Hence, the learned Judge is unjustified in setting aside the order dated 8.5.2012.;