PUSHPENDRA SINGH BHATI,J. - (1.) Since both the petition pertains to same facts and same sequence of events, therefore, both are being decided by a common order.
(2.) The petitioner by way of filing these writ petitions is claiming for the following reliefs:- SBCWP No. 6816 of 2017 "(A) The instant petition for writ may kindly be ordered to be allowed and a writ, order or direction in the appropriate nature may kindly issued in favour of the humble petitioner. (B) the impugned patta so issued in favour of the respondent No. 3 vide Annex. 16 and the entire proceedings of auctioning the road land to the respondent No. 3 herein by the respondent No. 2 may kindly be quashed and set aside and the entire proceedings for auctioning of the road land may kindly be ordered to be declared illegal and the respondents may kindly be restrained from raising any kind of construction over the open land/road in question and they may further kindly be directed to remove the construction already raised over the land without authority and it is further most respectfully prayed that the respondents herein may kindly be restrained from raising any kind of construction towards the south side of the plots of the humble petitioner bearing plots No. 1 and 16, which is 40 feet wide road. (Ci) Any other appropriate writ, order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner. (D) the cost of the writ petition may kindly be awarded in favour of the petitioner." SBCWP No. 6032 of 2017 ""(A) The instant petition for writ may kindly be ordered to be allowed and a writ, order or direction in the appropriate nature may kindly issued in favour of the humble petitioner. (B) The impugned order dated 27.01.2017 (Annex. 10) and dated 17.05.2017 (Annex. 12) passed by both the learned courts below may kindly be quashed and set aside and the temporary injunction application preferred by the humble petitioner may kindly be ordered to be allowed with costs throughout. (C) by an appropriate writ, order or direction the respondents may kindly be restrained from raising any kind of construction over the open land/road situated towards the South side of the plots in question of the humble petitioner bearing plots No. 1 and 16 situated in Khasra No. 130/2 at Revenue Village Sunthala, Tehsil and District Jodhpur; (D) Any other appropriate writ, order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner. (E) the cost of the writ petition may kindly be awarded in favour of the petitioner."
(3.) The facts as noticed by this Court are that the petitioner purchased two residential plots, bearing plot No. 1 and 16 in Khasra No. 130/2 situated at revenue village Sunthala, Tehsil and District Jodhpur by way of a registered sale-deed from one Shri Chhela Ram and Shri Hasta Ram way back in the year 2009, both being adjacent to each other. Prior to purchase of the plots, the predecessor in title of the plots got issued patta in his favour bearing patta No. 16331 for plot No. 1 and patta No. 18104 for plot No. 16. Counsel for the petitioner has shown map of concerned place and pointed out that towards southern side of plot No. 1, there is 40 Feet wide road; towards northern side there is plot No. 2; towards eastern side there is 100 Feet wide road and towards western side plot No. 16 of the petitioner is situated. Further, beyond plot No. 16 towards Western side of the plot, 40 Feet road is available. Counsel for the petitioner submits that the Local Authorities is unlawfully auctioning the land shown as 40 Feet wide way near Plot No. 1 belonging to them and to prevent such infringement of right, petitioner preferred a civil suit for permanent injunction alongwith an application under Order 39, Rule 1 and 2 CPC. The bone of contention and main grievance of petitioner is that 40 Feet wide road, which is available to Plot No. 1 on its Northern side is required to remain as road for the purpose of enjoying his property. Counsel for the petitioner admits that there was a typographical error in pointing out sides of plot and for that purpose an application for amendment was moved before the learned courts below at the appellate stage. The application under Order 39, Rule 1 and 2 CPC was decided against the petitioner vide order dated 27.1.2017 (Annex. 12), against which, the petitioner preferred appeal and the appellate court also rejected the same on 17.5.2017 (Annex. 14). Counsel for the petitioner submits that application of mind has been made by both the courts below and also in the meanwhile auction proceedings were initiated by the Municipal Corporation, Jodhpur wherein successful bidder was allotted the land in-question on 11.4.2017 during pendency of the suit. Since application under Order 39, Rule 1 and 2 CPC did provide adequate relief to the petitioner, therefore, he challenged the action of Local Authority by way of filing S.B. Civil Writ Petition No. 6032/2017 and during pendency of the writ petition due to subsequent event of auctioning of the land inquestion by the respondent No. 2 in favour of respondent No. 3 on 11.4.2017, the petitioner had to prefer writ petition, being S.B. Civil Writ Petition No. 6816/2017, in which, the auction proceedings are under challenge. Counsel for the petitioner pointed out that the respondents by such action have committed grave illegality as the entire exercise of auctioning has been undertaken in a hurried manner just to give benefit of auction to respondent No. 3. Counsel for the petitioner has further harped upon the fact that though his property falls in Khasra No. 130/20 but he is directly affected by auction in Khasra No. 131/20 as respondent No. 2 has allotted 40 Feet road land in question to respondent No. 3 to extend undue benefit. Counsel for the petitioner has also shown map annexed with the pattas, which as per him, establish the fact of 40 Feet road being available towards Southern side of the plot bearing No. 1 and 16. Counsel for the petitioner further reiterated that a road was provided by Local Authorities in the plan approved by the Assistant Town Planner, Jodhpur. Counsel for the petitioner states that 'pattasud' plots are adjacent to the road in-question, therefore, he had to file an application for temporary injunction so as to restrain respondents from making any construction on the land in-question. As per the proposed site map, it proposes a residential scheme in Khasra No. 130/2 (annex. 15) at Village Sunthala and just near plot Nos. 1 and 16, a public road of 40 Feet width, is shown. Counsel for the petitioner has also pointed that the auction was cancelled at one point of time but the same was re-initiated without adopting proper procedure laid down in law and, therefore, once the auction itself was bad, thus, it was open for the respondents to claim any right to do construction on the said plots or to change status of the same.;