SUNIL PARIHAR Vs. GANPAT SINGH

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The present appeal has been preferred against the order dtd. 3/9/2019 passed by Additional District Judge No.5, Jodhpur Metropolitan in Civil Misc. Case No.34/2018(Sunil Parihar and Ors. V/s Ganpat Singh and Ors.) arising out of Original Civil Suit No. 17/2018, whereby the Temporary Injunction Application filed by the appellants/plaintiffs under Order 39 Rule 1 and 2 C.P.C. has been rejected.

(3.) Learned counsel for the appellants vehemently submits that the learned Court below committed an error while rejecting the application preferred under Order 39 Rule 1 and 2 read with Sec. 151 C.P.C. He further submits that the appellants and the respondents are close relatives and merely on the basis of the admission of the appellant's father in some other civil case, it cannot be construed that the present appellants are not in the possession of disputed property. He submits that although there was a dispute between the respondent-brothers but to cut short the said dispute, appellant's father gave the statement in that suit which was factually incorrect. He further submits that the statement given by the appellant's father in that suit cannot be used against the appellants in the present case. He submits that even as per the site report prepared by the Police in the criminal case, the possession of the present appellants is shown. He, therefore, submits that the learned trial Court has committed an error while recording the finding that the prima facie case does not exist in favour of the appellants. Learned counsel has relied upon the judgments of the Bombay High Court in the case of Ramabai Shriniwas Nadgir and Ors. V/s The Government of Bombay reported in AIR 1941 Bom 144 and judgment of the Hon'ble Supreme Court in the case of Basant Singh V/s Janki Singh and Ors. reported in AIR 1967 SC 341.