- (1.) APPALLED by the impugned order dated 5th of February 2015, the appellant -plaintiff has laid this appeal under Order 43 Rule 1(4), Code of Civil Procedure 1908 (for short, 'CPC'). The learned Addl. District Judge, Barmer (learned trial Court), by the order under challenge, has rejected the application of the appellant under Order 39 Rule 1 & 2 read with Section 151 CPC for temporary injunction in a suit for declaration about ownership of the suit property, possession of the property and the relief of mandatory injunction for removal of unauthorized construction over it. Precisely, for claiming ownership over the suit property, the appellant -plaintiff has invoked doctrine of adverse possession. In the plaint, it is also inter -alia averred by the appellant that earlier the land was jointly owned by his father Narain Singh and one Shiva Ram and Shiva Ram sold his share to his father by a registered sale deed on 17.12.1968. It is also stated in the plaint that after death of Narain Singh in the year 1989, the appellant became the sole owner of the property being the only legal heir of his father and the property remained in his possession as its owner. Appellant has also referred to an earlier litigation launched at his behest against first respondent Municipal Council, purportedly for injunction with respect to the same property. The said suit was partly decreed by the Civil Judge (Jr.Div.), Barmer directing the Municipal Council not to dispossess the appellant from the land in question without following due process of law.
(2.) ALONG with the suit, an application for temporary injunction is also filed by the appellant -plaintiff claiming the relief that he may not be dispossessed from the land in question and status quo regarding the suit property be maintained during the pendency of the suit.
(3.) THE application for temporary injunction is contested by the first respondent Municipal Council, Barmer and a reply to the same is filed. In its reply, the first respondent has categorically averred that disputed land is recorded about two decades back in the name of Municipal Council, Barmer as per revenue records. It is also specifically pleaded that in the revenue record the land is shown as part of Khasra No.168 and set apart for burial place. On the strength of this plea, the first respondent has submitted that suit is barred by limitation. As regards the averment pertaining to possession of the land, respondent has specifically averred in the reply that appellant has made encroachment on the land, which is recorded in the revenue record as Gair Mumkin Samshan, and lease deed has been issued in the name of second and third respondent as well as the entire community to which they belong. That apart, certain other objections are also incorporated in the reply and the alleged construction so made on the land in question by father of the appellant is also seriously disputed by the first respondent. With these averments, a request was made for rejection of prayer for interim injunction. The learned Court below, after hearing the rival submissions, recorded its finding with clarity and precision that appellant -plaintiff has failed to establish prima facie case in his favour. While examining the alleged title of the appellant, the learned Court below has found that prima facie title of the appellant is under serious cloud inasmuch as the alleged sale transaction between Moola Ram s/o Kachhba with appellant's father and Shiva Ram is of no avail and consequence. According to learned Court below, the predecessor in title of Shiva Ram and appellant's father himself had no title about the said property and as such he was not competent to transfer the same to others. While referring to the earlier suit laid at the behest of the appellant, the learned Court below has taken note of the finding of fact recorded by learned Civil Judge (Jr.Div.) Barmer, wherein the Court has concluded that appellant has failed to prove his title and consequently declined the relief of permanent injunction. A prima facie finding is also recorded that aforesaid judgment has attained finality and therefore appellant cannot maintain second suit for perpetual injunction. While adverting to the other ingredients necessary for grant of temporary injunction, learned Court below has recorded a categorical finding that these two ingredients are conspicuously missing and as such temporary injunction cannot be granted in favour of the appellant.;