LAL SINGH JHALA Vs. PANNA LAL

JUDGEMENT

(1.) This appeal under Order XLIII, Rule 1(u) CPC is directed against the judgment dated 23.7.2012 passed by the Additional District Judge No.2, Udaipur, whereby the appeal filed by respondent-plaintiff Panna Lal has been accepted and while setting aside the order dated 6.7.2012 passed by the Civil Judge (Jr.Div.), Gogunda ('the trial court'), by which application filed by the appellant-defendant under Order VII, Rule 11 CPC was accepted, the suit has been remanded back to the trial court.

(2.) The respondent filed a suit for permanent injunction, inter-alia, with the averments that the plaintiff has been using land situated on by-pass at Gogunda for commercial use wherein his godown is constructed and business of various type of stone slabs and gitti is being conducted. It was also claimed that even before purchase of the property on the said land the business of stone was being conducted; the disputed land is Araji No.3593 ad measuring 14.5 Biswa and Araji No.3596 ad measuring 14.5 Biswa whose original khatedar was Savaji, who sold his half share to Panna Lal on 20.2.1970 and handed-over the possession; Panna Lal transferred the said property to Laxmi Lal on 14.2.1972 and the same has been recorded the name of Laxmi Lal and the present Araji number is 6491 ad measuring 0.1200 Htrs., which land has been transferred to the plaintiff on 12.12.2006 by Laxmi Lal and possession has been handed-over. It was averred that the land has not been put to agriculture use at any time and the same is being put to commercial use. Whereafter, allegations were made against the appellant-defendant regarding attempt to dispossess, resulting in proceedings before the police. The said attempt was claimed to be the cause of action for filing the suit and it was prayed that the defendant be restrained from interfering in the business, entering into the property and dispossess the plaintiff.

(3.) The appellant-defendant filed application under Order VII, Rule 11 CPC, inter-alia, with the plea that the plaintiff has referred to the land by its description as agriculture land, the land continuous to be agriculture land and has not been converted for nonagricultural purposes residential or commercial purposes and therefore, the suit was not maintainable. It was also claimed that the defendant had already filed a suit for declaration, correction of entries and permanent injunction before the SDO, Girwa, Udaipur regarding the land in question, which was purchased by him in the year 1988 by way of registered sale deed and claimed that he was in possession.