KAILASH Vs. RADHA BALLABH

JUDGEMENT

(1.) This writ petition has been preferred by the petitioner against the order dated 10.01.2013 passed by learned Additional District Judge, Parbatsar, District Nagaur (for short 'the appellate court' hereinafter) in Civil Appeal No.5/2012, whereby the learned appellate court has dismissed the appeal preferred by the petitioner against the order dated 27.02.2012 passed by Civil Judge (SD), Parbatsar (for short 'the trial court'hereinafter), whereby the application preferred by the petitioner under Order 39 Rule 1 and 2 CPC was rejected.

(2.) Brief facts of the case are that the petitioner preferred a suit for mandatory injunction against the respondent, while claiming that a Nohra situated in village Rid-ki-Abadi, wherein three rooms on the ground floor and four rooms on the first floor are constructed, belonged to one Nand Ram son of Kishan Lal, who later on died issue less. It is further stated that during his life time, Nand Ram had given the land to Bihariji Maharaj Mandir through a Will and since then, the said Nohra is being used by Members of Maheshwari, Rathi and Vyas Community and the property is now belonging to Mandir. However, the respondentplaintiff has illegally taken the possession of the said property and put a lock on it, while claiming that the said property is his personal property. The petitioner has, therefore, prayed for granting a mandatory injunction to the effect that the respondent be dispossessed from the property in question and the same may be kept free for the use of the public at large. Along with the said suit, an application for temporary injunction was also preferred, wherein it was prayed that the respondent may be directed to unlock the property in question immediately and restrained from locking it again in future.

(3.) The learned trial court, after taking into consideration the reply preferred by the respondent and after hearing both the parties, had found that the respondent, in his reply, had claimed that the property in question is a public property and he has not encroached upon the said property and it is open for any member of the society to use the said property. The respondent has claimed that earlier the petitioner had preferred a suit for permanent injunction, while claiming the property in question as his personal property but the said suit was dismissed, then he preferred an appeal, in which he claimed himself to be the tenant in the said property and the said appeal was also dismissed. Now, the petitioner has filed a suit for opening of the lock put on the property in question while making false allegations. It is also claimed by the respondent that the key of the lock of the property is with the Pujari of the Mandir and any member of the society can use the same for public purpose as and when required.