IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Miscellaneous Appeal No.5330 of 2009 Chimman Dharamshala, Khirni Ghat, Bharatpur & Others VERSUS Udaibhan Singh son of Shri Jawala Singh Date of Judgment :::: 20th January, 2010. Hon'ble Mr. Justice Dalip Singh Mr. G.K. Garg, Counsel for the Plaintiff-appellants. *** By the Court :
Heard learned counsel for the plaintiff-appellants.
Perused the impugned order dated 31.08.2009 on the application filed under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908 for the grant of temporary injunction.
The learned trial court has considered the case of both the parties and the material placed before it and has come to the conclusion, while deciding the prima-facie case, that the plaintiff-appellants do not have any prima-facie case and the defendant, on the other hand, has produced the documents to show the prima-facie case in his favour.
During the course of hearing also, the learned counsel for the plaintiff-appellants frankly admitted that as per the Commissioner’s report the said Sultan-Singh-Ka-Chabutara over which the pooja etc., was being carried on does not exist and the defendant has already raised the constructions on the same.
In that view of the matter, the question of issuance of any temporary injunction in that behalf does not arise. The appeal is, therefore, liable to be dismissed.
Learned counsel for the plaintiff-appellants further contended that adjoining the `chabutara’ and near the `dharamshala’ of the plaintiff, there was an open piece of land on which the defendant should be restrained from raising constructions. Admittedly, the plaintiff does not possesses any title over the said piece of land.
In that view of the matter, the plaintiff is not entitled to seek any temporary injunction in respect of the aforesaid piece of land over which the plaintiff neither has the title nor the possession.
In case, the plaintiff-appellants succeed in the suit and if any constructions are raised during the pendency of the suit, the defendant runs the risk of raising the constructions at his own peril and the same shall be subject to the final out come of the suit.
The miscellaneous appeal as well as the stay application are accordingly dismissed.
(Dalip Singh), J.
Ashok/