MANGILAL Vs. NAGAR PALIKA, BILARA AND OTHERS

JUDGEMENT

(1.) This revision petition has been filed against the judgment of the Additional District Judge No. 1. Jodhpur Nagar Palika dated Sept. 26, 1987 by which he has dismissed the appeal of the plaintiff-petitioner and confirmed the order of the Munsif, Bilara dated Nov. 11,1984, dismissing the application of the plaintiff-petitioner moved under Order 39 Rules 1 and 2, C.P.C. praying that the defendant Nagar Palika, Bilara be retrained free selling the disputed land to the defendant-non-petitioner No. 2 Pemaram. The facts giving rise to this revision petition may be summarised thus.

(2.) The plaintiff-petitioner's case is that the house of the parties are situated in the town of Bilara, a lane exists adjacent to their houses, the defendant Pemaram applied for the purchase of a part of it alleging that it is a strip of land, the defendant No. 1, Nagar Palika, Bilara has passed an order for its sale, their windows, ventilaters and doors open towards it and the effluent of the houses also falls there. It has been prayed in the plaint that the Nagar Palika, Bilara be restrained through permanent injunction from executing the sale-deed in respect of a part of the land of the lane and getting it registered and the defendant-non-petitioner Pemaram be restrained from occupying it Along with the plaint, an application under Order 39 Rules 1 and 2, C.P.C. was moved. The defendant Pemaram only filed, his reply seriously opposing it. He averred in it that the disputed land is not a part of the public street but it is a part of the ship of land. After hearing the parties, the learned Munsiff dismissed the application. The plaintiff petitioner preferred an appeal and the same was also dismissed.

(3.) It is contended by the learned counsel for the plaintiff-petitioner that the learned lower courts have acted illegally and with material irregularity in holding that the disputed land is not a part of the public street but it is a part of the strip of land. He also contended that the lower courts have ignored various documents on record and their findings are based on surmises and conjectures. He further contended that even if the disputed land is held to be a part of strip of land, it could not be sold by private negotiation and it can be sold through auction as required under Rule 23, Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 (hereinafter to be called 'the Rules'). He relied upon the judgment of a Division Bench of this court in Manak Chand Vs. State of Rajasthan, D.B. Special Appeal No. 201/87 D/- 7.9.1987 (Raj).