CW/4746/2004 of ABDUL JABBAR and ORS. Vs CIVIL JUDGEJ.D.CUM J.M.BHILWARA and ORS. on 17 December 2004

S.B.Civil Writ Petition NO.4746/2004

Abdul Jabbar & Anr.vs

ACJ, Bhilwara & Ors.

DATE OF ORDER : - 17.12.2004

HON'BLE MR. PRAKASH TATIA,J.

Mr. Sachin Acharya,for the petitioner.

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Heard learned counsel for the petitioner.

The petitioner is aggrieved against the order of the trial courtdated 5[th] Oct., 2004 by which the trial court rejected the petitioner’sapplication filed under Order 16 Rule 6 CPC. According to learnedcounsel for the petitioner, the petitioner tried to obtained the copiesof the relevant documents from the Municipal Council, Bhilwara as wellas Urban Improvement Trust, Bhilwara relating to the alleged licence ofthe defendants-non-petitioners, but both the local authorities did notsupply the copies to the petitioner, therefore, petitioner submitted anapplication for summoning the documents from the UIT, Bhilwara as wellas Municipal Council, Bhilwara.

According to learned counsel for the petitioner, the proceedings taken to grant licence to the defendants-non-petitioner by the localbodies were completed in a day or two day and thereby the defendantscould obtain the licence from the local authorities. Therefore, thesedocuments are relevant for just decision of the even temporaryinjunction application filed by the petitioner. Learned counsel for thepetitioner submits that the petitioner was unnecessarily blamed fordelaying the matter whereas delay was not caused by the petitioner-plaintiff as is clear from the proceedings of the trial court. Theproceedings clearly reveal that the time was taken by the defendants-non-petitioners for filing the replies only. It appears from the facts ofthe case that plaintiff filed the suit for permanent injunction allegingthat his land is situated in Araji No.2038 measuring 1 Bigha 14 Biswa andpart of it was got converted by the plaintiff no.1. The measurement ofthe converted land is given in para no.2 of the plaint. According toplaintiffs-petitioners, the plaintiffs are owner of the property inquestion. According to plaintiffs the defendants have no right, title orinterest over the property, which is described in para no.4 of the plaint,but the defendants tried to encroach upon the land. Therefore,petitioner filed the suit for injunction.

The defendants-non-petitioners submitted written statement andcame with a case that the defendants are having licence in their favourduly issued by the competent authority for the land in dispute and, therefore, plaintiff has no case for grant of injunction. The copy of thewritten statement is placed on record as Annex.3.

In view of the facts mentioned above itself, it is clear thatplaintiff has come with a positive case of having his title over the land indispute. The plaintiff can destroy the case of the defendants only byproving is own title and he may not even need to assail the title of thedefendants because if title of the plaintiff is established for the land indispute, no other can issue licence for the land in question. It appearsfrom the fact mentioned above that the plaintiffs and defendants areclaiming their right over the land in dispute flowing from differentauthorities. It is not the case that one authority has passed on rights ortitle of the property in favour of the plaintiffs and respondents. In suchsituation, on proving his own title, the plaintiffs may submit that thedeed executed by any other authority is not binding upon them and is ofno effect so far as their rights are concerned.

It will be worthwhile to mention here that according to plaintiff,the plaintiff is claiming his right in Araji No.2038 and its part, which isconverted by the order of the competent authority whereas according tolearned counsel for the petitioner the defendants are claiming theirtitle over a different Araji Number. It is so then the title deed of theother party may not be relevant at this stage in view of the fact that the

plaintiffs are not at all concern with the property of others as he cansucceed in his suit by proving his title for his land. It appears that thedispute is about the location of the land, rather than the title or right topossess. The plaintiff may succeed on proving his title as well as byproving location of his land and, therefore, if the trial court hasrejected the application of the petitioner for summoning of thedocument, the trial court has not committed any illegality.

In view of the above, even if the petitioner has not committedany delay for moving the application for summoning of the documenteven then at this stage, summoning of document is not necessary.

Hence, the writ petition of the petitioner is disposed of.However, the petitioner would be at liberty to move application in thesuit at appropriate stage again for summoning the documents, if itbecomes necessary and that depends upon the subsequent developmentin the suit, but there is no reason for keeping the injunction applicationfor the documents.

(Prakash Tatia), J.

c.p.goyal/-