SMT. SANTOSH PRAJAPAT Vs. HEMRAJ KHARATIYA

JUDGEMENT

(1.) BY the impugned order dtd.9.9.2011, passed by the learned Civil Judge (J.D.) No. 8, Jodhpur in Civil Original Suit No. 1/2010 - Hemraj Kharatiya V/s Smt. Santosh, the learned trial Court in a suit for injunction has held that the issue No. 5 relating to the issue whether the plaintiff Hemraj Kharatiya without seeking declaration for title in respect of suit property, can claim any injunction with respect to the said suit house or not, in which the defendant Smt. Santosh W/O Kalu Ram claimed to be in possession, cannot be decided as preliminary issue since the said issue is a mixed question of law and facts and therefore, requires establishing necessary facts with the help of evidence and consequently, the same will be decided after the evidence is led by the parties. The learned counsel for the petitioner - defendant Mr. O.P. Pungalia relying upon the decision of this Court in the case of Kundan Mal V/s Thikana Siryari reported in : AIR 1959 Raj. 146 submitted that where the plaintiff is admittedly not in possession of the suit property in question, he cannot claim for mere injunction without claiming declaration relief in this respect.

(2.) HAVING heard the learned counsel and upon perusal of the judgment cited at the Bar, this Court is satisfied that even the said judgment in the case of Kundan Mal (supra) in which this Court made an observation in para 6 of the judgment that where the plaintiff is not in possession of the property in dispute, he can sue for injunction only, does not prohibit filing of suit for injunction where the plaintiff has claimed his right over the joint family property including the suit property in question also. The learned court below has rightly held that the same cannot be decided as a preliminary issue without parties being required to lead evidence in this regard. Since the defendant herself is the widow of predeceased son Kaluram S/o one Shri Mangi Lal and plaintiff Hemraj Kharatiya S/O Lunchand is also grand -son of same Mangi Lal, it cannot be said at this stage whether such a suit for injunction without claiming relief of declaration would not be maintainable.