RANJEET MODI S/O SHRI SHYAM SUNDER MODI Vs. PRINCIPAL SECRETARY TO THE GOVERNMENT URBAN DEVELOPMENT AND LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT OF RAJASTHAN, GOVERNMENT SECRETARIAT JAIPUR AND OTHERS

JUDGEMENT

(1.) Instant second appeal is filed under Section 100 CPC by the appellant-plaintiff against the judgment and decree dated 01.12.2016 passed by the learned Additional District Judge No.10, Jaipur Metropolitan (hereinafter referred to as 'the first appellate court') whereby the regular first appeal No.65/2015, filed by the plaintiff-appellant was dismissed and the order and decree dated 18.11.2016 passed by the learned Additional Civil Judge East, Jaipur Metropolitan (hereinafter referred to as the 'trial court') in Civil Suit No.167/2016, was confirmed. By the said order dated 18.11.2016, the application filed by the respondent No.4 under Order 7, Rule 11 was dismissed.

(2.) The brief facts leading to this second appeal are that the plaintiff-appellant filed a suit for permanent injunction in trial court against respondent-defendants for restraining them from demolishing the temple of Hanumanji, Mahadev ji and Mataji situated in Bal ji ka Khanda, Badi Chopad Jaipur and sifting of Idols. It has been averred on behalf of the appellant that it was initially observed by the trial court that suit is barred by law in the light of provision of section 39 of the Metro Railway (Construction of Works) Act, 1978 (in brief Act of 1978), however, subsequently the suit was registered and notices were issued to the respondent-defendants. Ultimately, while hearing an application filed on behalf of Respondent No.4 under Order 7, Rule 11 , CPC, the suit was dismissed on the ground that it was barred by section 39 of the 'Act of 1978'. The plaintiff-appellant filed an appeal against the said order of learned trial court before the first appellate court which dismissed the appeal holding that the trial court has not committed any error of fact and law in dismissing the suit. Hence the present second appeal.

(3.) I have heard the learned counsel for the parties and perused the record.