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S.B. Civil Writ Petition No.8757/2009
Mohan Lal
Vs
Bhera Ram
Date of Order: 28.4.2010
HON'BLE MR. PRAKASH TATIA, J.
Mr. Moti Singh, for the petitioner.
Heard learned counsel for the petitioner.
The petitioner is aggrieved against the order dated
10.8.2009 passed by the court of Civil Judge (Jr. Div.) & Judicial
Magistrate, First Class, Pali Marwad whereby the trial court
rejected the petitioner’s application seeking virtually striking of
the counter claim of the defendant or separating it from the suit
of the plaintiff on the ground that the plaintiff filed the suit for
specific property by giving its complete neighbourhood which has
been admitted by the defendant in the written statement and the
defendant in the counter claim has claimed relief for altogether a
different property which may be belonging to the defendant. It
is submitted that it is not permissible for defendant to seek any
relief other than the relief, which has relation with the subject
matter. According to learned counsel for the petitioner,
therefore, the counter claim can be separated.
I considered the submissions of learned counsel for the
petitioner and perused the facts stated in the counter claim. In
para no.5 of the counter claim, the defendant specifically
pleaded that plaintiff do not want measurement of the plot in
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question and wants to encroach upon the defendant’s plot and
this is so because of the reason that other persons namely Om
Prakash and Kanaram encroached upon the plaintiff’s plot.
Therefore, the plaintiff wants to take possession of the property
of the defendant in the garb of the present suit.
From the facts mentioned in para no.5 of the counter claim
it is clear that it is not a case of dispute of title rather it is a case
of disputed identity of the property and location of the pot and
defendant has pleaded that he is not disputing the petitioner’s
property but in the garb of that claim if plaintiff wants to
encroach upon the defendant’s plots then it is the defendant who
is entitled to relief for injunction by showing that the plot for
which in fact suit has been filed is in the boundary of the
defendant’s plot. All these facts can be decided after evidence
and cannot be decided by way of application nor the counter
claim can be rejected without deciding the pleas taken in counter
claim. Therefore, the trial court has not committed any error of
law in any manner.
In view of the above, there is no merit in this writ petition
and the same is hereby dismissed.
[PRAKASH TATIA],J.
cpgoyal/-
