A lower appellate court acts without jurisdiction in considering alleged mistakes and wishes of parties in a suit for permanent injunction to restrain construction on a plot, and should strictly follow evidence on record and provisions of law.

1. - The petitioner-original plaintiff filed a suit No. 533/87 in the Court of Civil Judge (Junior Division), Jodhpur inter-alia praying for permanent injunction restraining the defendant No.1 from putting further construction on the Plot No. 26-B allotted to him by the respondent No.2 i.e. Urban Improvement Trust, Jodhpur. The petitioner-plaintiff also filed an application for temporary injunction. After hearing the parties, the trial Court granted the same as per order dated December 23, 1987, and restrained the defendant No. 1 from putting up further construction on the plot in question. The defendant No. 1 preferred an appeal being C.A.O. No. 39/88. The appellate Court i.e. Addl. Distt. Judge No. 2, Jodhpur as per judgment and order dated Feb. 18,1991 reversed and set-aside the order passed by the trial Court and allowed the appeal filed by the defendant No. 1. It is against this judgment and order that this revision petition is filed.

2. Today, when the revision petition came up for hearing, the learned counsel for the respondents raised preliminary objection that the main suit was dismissed for default on April 25, 1994, therefore, the interlocutory application as well as the revision application which arises out of the interlocutory application also stand automatically disposed of. Therefore, it is submitted that this revision petition is not maintainable.

3. It is contended by the learned counsel appearing for the petitioner that the suit was of course dismissed for default, but it has been restored by the trial Court vide order dated May 22, 1995. Therefore, there is no question of this revision petition which was pending before this Court having become infructuous.

4. The learned counsel for the respondent No. 1 relied upon a decision rendered by the learned Single Judge of this Court in Kanchan Bai v. Ketsidas, reported in 1990 (1) RLW 87.

5. In the aforesaid decision, the question arose as to whether review application in respect of revision petition decided earlier and disposed of on the ground that the suit having been disposed of for default, the revision petition had also become infructuous, was maintainable or not. The learned Single Judge held that in facts of the case the review application was not maintainable. Incidental observations made by the learned Single Judge cannot be treated as laying down the.law to the effect that revision petition pending before this Court would also stand dismissed automatically and stands disposed of once the suit is dismissed for default. No such proposition of law of universal applicability can be could out from the aforesaid decision. Therefore, the reliance placed on the aforesaid decision is of no help to the defendant No.1 and the preliminary objection raised is found to be without substance.

6. It is undisputed position that the Plot No. 26B on which the defendant has been the construction was allotted to the plaintiff-petitioner. It has not still been cancelled. It is also an admitted position (sic) account of the mistake committed by the adjoining allottees of Plot no. 29 to 35 that (sic) confusion has arisen. It is on account of this confusion created on account of the mistake committed by the adjoining plot holders that the defendant No.1 has put up construction on the plot belonging to the plaintiff-petitioner. The learned Distt. Judge was swayed away by this bonafide mistake of other people and alleged mistake on the part of respondent No. 2 i.e. Urban Improvement Trust, Jodhpur. With utmost respect it was not open to the learned Distt. Judge to consider all these aspects at this stage. All that was required to be seen was as to whether the plaintiff established his ownership over the plot in question. The ownership of the plot is not even disputed by respondent No. 2 i.e. Urban Improvement Trust. Simply because the defendant No. 1 is alleged to be in possession, the defendant No.1 does not get any right to put up construction over the plot belonging to some