JUDGMENT :

1. This petition under Article 227 of the Constitution of India has been preferred claiming the following reliefs :

“It is therefore most respectfully prayed that this writ petition may kindly be allowed,

A. By an appropriate writ, order or direction order may kindly be issued and order dated 12.5.2023 passed in civil misc. case no.08/2023 titled as Banshilal Vs Iliyas & Anr and the order dated 03.06.2023 passed in civil appeal no.8/2023 titled as Banshilal vs Iliyas & ors may kindly be quashed and set aside.

B. By an appropriate writ, order or direction order may kindly issued, the application annex 2 preferred by the petitioner under order 39 Rule 1 and 2 of the CPC may kindly be allowed as prayed and the respondents may kindly be restrained by way of the Temporary injunction as prayed in the application till the final decision of the suit.

C. Any other appropriate writ, order or direction, which this Hon’ble Court may deem it just and proper in the facts and circumstances of the case, may kindly be issued.

2. Brief facts of the case, as placed before this Court, by learned counsel of the petitioner, are that the petitioner instituted a suit for permanent & mandatory injunction and in regard to illegal construction, along with an application under Order 39 Rules 1 & 2 read with Section 151 CPC against the respondents before the learned Civil Judge, Phalodi, stating therein that the petitioner is having a land situated at Nagaur-Phalodi Main Road, Village Khichan, Tehsil Phalodi, patta no.4 wherefor was issued on 05.06.1996 by the Gram Panchayat Khichan.

2.1. It was further stated in the suit that the respondents are bent upon to raise illegal construction, contrary to the lay out plan issued by the Gram Panchayat. The petitioner is having a title over plot no.1, and thus, the respondents have no right to raise the construction over the land in question.

2.2. The learned Court below vide order dated 31.03.2023 passed the ad-interim order to maintain the status quo in regard to the land in question, till filing of the written statement by the respondents. Thereafter, the respondents filed the written statement to the temporary injunction application.

2.3. The learned Court below appointed the Survey Commissioner for conducting the site inspection to ascertain the actual position and status of the land in question, and the Commissioner submitted the survey report; thereafter, the learned Court below vide the impugned order dated 12.05.2023 rejected the temporary injunction application of the petitioner.

2.4. Being aggrieved by the order dated 12.05.2023, the petitioner preferred an appeal under Order 43 Rule 1 CPC before the learned Additional District Judge, Phalodi, District Jodhpur, but the same was dismissed by the learned Appellate Court vide the impugned order dated 03.06.2023. Thus, the present petition has been preferred claiming the afore-quoted reliefs.

3. Learned counsel for the petitioner submitted that the present case not only pertains to a dispute regarding possession, but the question of tittle is also involved herein, which can only be decided after due collection of the evidence. It was further submitted that the petitioner raised a serious question of law before the learned Courts below, but the learned Courts below declined to duly appreciate the same, vide the impugned orders, thus committed an error of law.

3.1. Learned counsel also submitted that the petitioner is having the lawful title over the land in question and the patta therefor was issued by the Gram Panchayat concerned; the respondents are having the patta no. 419 which is apparently for different location, and therefore, the respondents have no right to raise any construction over the land in question, which belongs to the present petitioner.

3.2. Learned counsel further submitted that the learned Court below wrongly observed that the peti