- (1.) By the instant writ petition under Article 227 of the Constitution of India, petitioners-defendants have assailed the impugned order dated 24.02.2015 (Annex.15) passed by the District Judge, Pali (for short 'the Appellate Court') whereby learned Appellate Court has affirmed the order dated 09.09.2014 (Annex.11) passed by the Civil Judge, Pali (for short 'the Trial Court') partly allowing the application under XXXIX Rule 1 & 2 CPC of the respondent-plaintiff in a suit for perpetual injunction and mandatory injunction.
(2.) Succinctly stated the facts of case are that respondent-plaintiff filed a suit for perpetual injunction and mandatory injunction against the petitioners and the other respondents, inter alia, on the ground that land measuring 11 bighas and 10 biswas situated at Pali bearing Chak 1 in khasra Nos.1417, 1418/1, 1418/1/3 and 1418/2 is a joint khatedari land of Sua Devi widow of Dalpat Singh, Bhanwar Singh son of Dalpat Singh, Takhat Singh son of Sukhdev Singh and six other incumbents with relevant entires in the revenue records. It is further averred that aforesaid agricultural land has not been partitioned among all the co-sharers in accordance with law which is in the knowledge of the petitioners-defendants as well as respondent No.3. In the plaint, a plea is also sought to be raised that none of the joint khatedar of the said land has applied before any competent court or authority for its conversion from agricultural land to abadi land and, therefore, requisite entires made for the land in question as abadi land in the name of Municipal Council, Pali without hearing any of the co-sharers of the land are prima facie invalid and de hors the law. It is further averred in the plaint that even after entering the said land as abadi land in the name of Municipal Council, Pali, no incumbent can be permitted to raise construction without obtaining proper lease deed for the land after payment of requisite fee and seeking prior permission of the Municipal Council. There is yet another fact pleaded in the plaint that no permission has been granted by the Municipal Council, Pali for converting the land for commercial use. It is in that backdrop the construction activity carried out by the petitioners on part of land is categorized as illegal and unauthorised. The respondent-plaintiff has also averred that it is the duty of the Municipal Council, Pali to take requisite steps to prevent illegal and unauthorised construction within the municipal area which it has failed to do despite repeated requests and reminders. Attributing high handed action on the part of petitionersdefendants, it is submitted in the plaint that they are raising illegal construction at the costs of jeopardizing the rights of respondentplaintiff who being a joint co-sharer of the land is having right over every inch of land till it is legally partitioned. A legal notice served on by the petitioners-defendants by the respondent-plaintiff for desisting from construction activities on 06.02.2012 is also pleaded in the plaint with precision. With these averments and some other ancillary facts, a relief is sought for perpetual injunction restraining the petitioners-defendants from raising construction and a mandatory injunction against them as well as Municipal Council, Pali for demolishing the construction already carried out. Alongwith plaint, application under Order XXXIX Rule 1 & 2 CPC is also laid by the respondent wherein relief is prayed that pending decision of the suit, the petitioners-defendants be restrained from raising further construction and a temporary injunction in mandatory form be issued for demolition of the already raised construction and to restrain Municipal Council, Pali from issuing patta in favour of the petitioners.
(3.) The application for temporary injunction is contested by the petitioners and a reply to the same is filed. In the reply, the petitioners have submitted that although in the plaint, land is shown as agricultural land but, in fact, Authorised Officer (Commissioner, Municipal Council, Pali) has passed order on 25.03.2013 under the Rajasthan Land Revenue Act, 1956 (for short 'the Act of 1956') by invoking Section 90-A whereby while exercising powers under subsection (8) of Section 90-A it has repudiated the khatedari rights of the land owners and the same is now recorded in the name of Municipal Council, Pali. It is in that background, the petitioners have pleaded that the suit has been filed on absolutely false and fabricated facts just to harass them. A specific plea is raised in the return that entire land of these khasras was partitioned by its co- sharers and 1/3rd share of Dalpat Singh was determined out of which he has sold land measuring 40 x 90 sq. ft. to the petitioners by a registered instrument and since then both the petitioners are in possession over the land in question. Opposing the prayer made in the application for temporary injunction, the petitioners have submitted in the return that being purchaser of the land, they are well within their rights to enjoy the same and further to raise the construction over it. As per the petitioners for the land in question which is purchased by them and in their possession, only Municipal Council is authorised and competent to take any action and the respondent-plaintiff has no locus to file a suit. While skipping the positive assertion of the respondent-plaintiff about raising the construction without permission, it is submitted in the reply that construction activity is not being carried out by the petitioner on public way and on the contrary, the same is being raised on the land owned by the petitioners. Questioning the maintainability of the suit on the anvil of Section 41(h) of the Specific Relief Act, 1963 (for short 'the Act of 1963'), the petitioners have also submitted in the reply that no temporary injunction can be granted to the respondentplaintiff. Joining the issue with the respondent-plaintiff to the extent he has castigated the proceeding under Section 90-A of the Act of 1956, the petitioners have pleaded that without laying any challenge to the said order before a competent authority, respondent-plaintiff cannot be allowed to challenge the said order in collateral proceedings like the present suit which is for the relief of perpetual and mandatory injunction. Ulterior motive is also imputed against the respondent-plaintiff for laying suit as well as application for temporary injunction and it was pladed in the return that neither there is prima facie case nor other ingredients necessary for grant of temporary injunction are available to him.;