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IN THE HIGH COURT OF RAJASTHAN
PUSHPENDRA SINGH BHATI, J.
Raghunathdas Vaishnav and Anothers – Appellants
Versus
Municipal Board, Nathdwara and Anothers – Respondents
S.B. Civil Writ Petition No. 17900 of 2018
Decided on : 10-05-2019
Order 39 – Rules 1 & 2 – CPC – Section 151 – Articles 226 & 227 – Constitution of India – Petitioners claim that they were in possession of property petitioners further claim that they have possession over said property for past twenty years without any interference by any other person, and they were peacefully enjoying their property on said plots; however, while they had made very small room called kotadi, respondents came to plots and dispossessed petitioners from property in question –Held, Submission of applications for regularization and registration thereof by Municipal Board, pertained to year 2013 and 2014 respectively, when new and as per Repeal and Savings Clause in the Act of 2009, old notification no more in existence, which would not entitle petitioners to any right being claimed by them, once documents of execution of lease deed and registration thereof, coupled with necessary payments, as above, made by respondent No. 2 to tune of Rs.80,70,000/- alongwith registration charge of Rs.6,78,180/- prima facie clear the title of the respondent No. 2, and thus a true owner cannot be saddled with the temporary injunction in favor of an encroacher, who has no prima facie being made out in his favour at the stage of temporary injunction – Writ petition is dismissed. (Para 30, 31, 32)
Facts of the case:
Petitioners claim that they were in possession of property petitioners further claim that they have possession over said property for past twenty years without any interference by any other person, and they were peacefully enjoying their property on said plots; however, while they had made very small room called kotadi, respondents came to plots and dispossessed petitioners from property in question.
Findings of the court:
Submission of applications for regularization and registration thereof by Municipal Board, pertained to year 2013 and 2014 respectively, when new and as per Repeal and Savings Clause in the Act of 2009, old notification no more in existence, which would not entitle petitioners to any right being claimed by them, once documents of execution of lease deed and registration thereof, coupled with necessary payments, as above, made by respondent No. 2 to tune of Rs.80,70,000/- alongwith registration charge of Rs.6,78,180/- prima facie clear the title of the respondent No. 2, and thus a true owner cannot be saddled with the temporary injunction in favor of an encroacher, who has no prima facie being made out in his favour at the stage of temporary injunction.
Result: Writ Petition is dismissed.
JUDGMENT :
PUSHPENDRA SINGH BHATI, J.
This writ petition under Articles 226 & 227 of the Constitution of India has been preferred claiming the following reliefs:
ii. the application (An.4) filed by the petitioners under Order 39 Rules 1 & 2 r/w 151 CPC may kindly be allowed with costs throughout;
iii. any other order or direction, which this Hon'ble Court may deem just and proper in the facts and circumstances of the case, may be passed in favour of the petitioner;
iv. writ petition of the petitioners may kindly be allowed with costs.”
2. Brief facts of this case, as noticed by this Court are that the petitioners claim that they were in possession of a property situated at Sukhadia Nagar, Near Narayan Chowi, opposite Housing Board, Nathdwara, District Rajsamand. The petitioners further claim that they have possession over the said property for past twenty years without any interference by any other person, and thev were peacefully enjoying their property on the said plots; however, while they had made a very small room called kotadi, the respondents came to the plots on 23.07.2018 and dispossessed the petitioners from the property in question.
3. The petitioners thereafter filed a civil suit before the Court of learned Civil Judge, Nathdwara and sought restrainment of the respondents from interfering with the peaceful possession of the petitioners over the property in question. For the said purpose, along with the said suit, an application for temporary injunction under Order 39 Rules 1 & 2 read with Section 151 CPC was also filed alongwith certain documents by the petitioners, which included applications for regularization moved by the petitioners on 23.12.2013 seeking regularization of their possession over the property in question, which were registered at Serial Nos. 2297 and 2296 dated 01.01.2014 with the Municipal Board, Nathdawara.
4. The aforementioned applications for regularization were moved to seek benefit of the notification dated 09.05.1993, which provided for regularization of the old possessions, and the petitioners claimed their entitlement for such regularization under the said notification. The documents filed by the petitioners also included a No-objection Certificate dated 23.07.2018 issued by the Municipal Board, Nathdwara for obtaining an electricity connection. The petitioners claimed that their boundary, wall and kotadi was being demolished by the private respondents, thereby disturbing their peaceful possession over the said plots, which they were enjoying for last twenty years.
5. The petitioners, as per their pleaded case, have placed strong reliance upon the notice dated 30.03.2002, which was issued by the Municipal Board, Nathdwara under Sections 203 and 107 of the Rajasthan Municipalities Act, 1959, which has been placed on record as Annexure-11 of the writ petition.
6. The learned trial court has dismissed the application for temporary injunction filed by the petitioners vide order dated 16.08.2018, against which the petitioners preferred Appeal No. 20/2018 before the Court of learned Additional District Judge, Nathdwara praying for temporary injunction, but the same was also dismissed vide order dated 12.10.2018.
7. Learned counsel for the petitioners submitted that the basic principles of Order 39 Rules 1 and 2 CPC required that the status quo regarding the property in question be maintained till disposal of the suit, as it would otherwise be detrimental to the cause of justice.
8. Learned counsel for the petitioners further submitted that the three issues of prima facie case, irreparable loss and balance of convenience, upon which the orders have been passed, have been wro
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