MANGAL SEN Vs. MADHU BAWARI

JUDGEMENT

(1.) Petitioner -plaintiff has laid this writ petition to challenge impugned order dt 19.08.2015 (Annex. 5) passed by learned Civil Judge (Junior Division), South, Udaipur, whereby learned Court below has allowed the application of respondent -defendant under Sec. 39 of the Stamp Act read with Sec. 151 CPC to struck off marking of Exhibit on agreement to sale being improperly stamped. I have heard learned counsel for the petitioner and perused the impugned order.

(2.) It is an admitted fact that the suit filed by petitioner -plaintiff is for perpetual and mandatory injunction where issue of title is not required to be decided. Essentially, the petitioner -plaintiff has claimed that the respondent -defendant has encroached over the land belonging to him and has also raised illegal construction which is required to be demolished. The burden of proving the fact of illegal construction by respondent -defendant for seeking issuance of a mandatory injunction is on the petitioner and for that petitioner is well within his right to tender requisite evidence.

(3.) There remains no quarrel that in the suit for injunction, Court is not obliged to decide the title of the parties. The learned Court below has exercised its discretion properly in passing the impugned order.