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Prem Dayal and anr. Vs. Urban Improvement Trust and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS. B. Civil Revision No. 88 of 1973
Judge
Reported in1974WLN(UC)261
AppellantPrem Dayal and anr.
RespondentUrban Improvement Trust and ors.
DispositionPetition dismissed
Cases ReferredHyderabad and Anr. v. Ajit Prasad Tarway
Excerpt:
.....by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - but without success and, therefore, the petitioner-plaintiffs instituted a suit against vipin prabhakar and others for injunction. being dis-satisfied, the plaintiffs have come up in revision before me......to be a park. in 1969 the u.i.t. allotted that plot bearing no. 26 measuring 80' x 120' to one vipin prabhakar. the plaintiffs alleged that plot no. a 26 encroached on the land intended to be the park. complaints were made to the u.i.t. but without success and, therefore, the petitioner-plaintiffs instituted a suit against vipin prabhakar and others for injunction. the learned munsif issued an exparte ad-interim injunction on december 1, 1971 to the effect that the u.i.t. shall not give permission for constructing a house in any part of the land marked in the site plan and reserved for a park. likewise, vipin prabhakar was also restrained from raising any construction thereon. the ex-parte injunction was vacated by the learned munsif on december 6, 1971 the petitioner-plaintiffs.....
Judgment:

B.P. Beri, C.J.

1. This is a civil revision directed against the judgment of the learned District Judge, Jaipur City, Jaipur dated January 20, 1973 whereby he has modified an order of injunction dated June 3, 1972,

2. The facts which it is necessary to recall for the disposal of this revision application, briefly stated are these In Bani Park Jaipur the Urban Improvement Trust (hereinafter called 'the U.I.T') prepared a scheme called 'Paramvir Major Shaitan Singh Scheme' for construction of a colony. Prem Dayal and Babu Lal Sharma, petitioner-plaintiffs before me, purchased two plots in auction bearing Nos. 76 and A.8 respectively. In the said scheme there was left, the petitioner-plaintiffs alleged, a triangular open space of land which they claimed was intended to be a park. In 1969 the U.I.T. allotted that plot bearing No. 26 measuring 80' x 120' to one Vipin Prabhakar. The plaintiffs alleged that plot No. A 26 encroached on the land intended to be the park. Complaints were made to the U.I.T. but without success and, therefore, the petitioner-plaintiffs instituted a suit against Vipin Prabhakar and others for injunction. The learned Munsif issued an exparte ad-interim injunction on December 1, 1971 to the effect that the U.I.T. shall not give permission for constructing a house in any part of the land marked in the site plan and reserved for a park. Likewise, Vipin Prabhakar was also restrained from raising any construction thereon. The ex-parte injunction was vacated by the learned Munsif on December 6, 1971 The petitioner-plaintiffs before me went up in appeal in the Court of the District Judge, Jaipur, who by his order dated June 3, 1972, accepted the appeals and set aside the order of the learned Munsif dated December 6, 1971, and confirmed the Ex. parte injunction issued by him on December 1, 1971. In the course of arguments before the learned District Judge it was urged on behalf of Vipin Prabhakar that the scheme had been altered and the plot No. A26 in the altered scheme encroached upon the space meant for park only by 20' and the rest of the 60' remained undisputed and there should be no objection in letting the defendant No. 3 Vipin Prabhakar to construct upon the area of 60' x 120' of the plot. The learned District Judge observed that he could not make any pronouncement at that stage because it was not certain whether the U.I.T. will agree that the size of the plot should be reduced in this building line.

3. On October 25, 1972, Vipin Prabhakar filed an application under Order 39 Rules 1 and 2 and Section 151, Code of Civil Procedure, praying for an injunction restraining the plaintiffs from interfering with his construction in the area of 60' x 120', in respect of which U.I.T. had permitted him to raise construction in the light of the observations made by the learned District Judge. The application was opposed. The learned Munsif held that he was not in a position to alter the injunction granted by the learned District Judge until he could decide whether the U.I.T. was competent to alter the scheme or not. The application of Vipin Prabhakar dated October 25, 1972 was rejected on November 1, 1972. Against this order, Vipin Prabhakar preferred an appeal before the learned District Judge. It was urged before him that the altered area of the plot of land had no longer encroached upon the triangular space reserved for the park. The learned Judge inspected the site, got it measured and came to the conclusion that the contention of the plaintiffs that the reduced area of plot no, A-26 encroached upon the land reserved for the park was incorrect. On this basis, be modified his injunction granted on June 3, 1972 to the effect that if Vipin Prabhakar raised construction on the disputed land leaving the area which fell into the land received for the park, there was nothing objectionable about it. In this view of the matter, he accepted the appeal preferred by Vipin Prabhakar and modified his earlier order. Being dis-satisfied, the plaintiffs have come up in revision before me.

4. Mr. Sharma on behalf of the respondent No. 3, has raised a preliminary objection that the present revision application is not competent in as much as the jurisdiction exercised by the learned District Judge was neither illegal nor it was exercised with material irregularity. He placed if liance on Hindustan Aeronautics Ltd., Balanagar, Hyderabad and Anr. v. Ajit Prasad Tarway : (1972)ILLJ170SC .

5. Mr. Bapna appearing for the petitioners urged that it was erroneous for the learned District Judge to say that the altered plot measuring 60' x 120' did not encroach upon the area reserved for the park and, therefore, the modification of the earlier order is suffering from material irregularity, because there is no change in the circumstances.

6. There is an undoubted alteration in the area of the plot marked A-26. The original measurements were 80' x 120'. The altered measurement of the plot are 60' x 120'. This is a clear arithmetical alteration in area. The question whether it encroaches upon the land originally reserved for a park stands concluded by the site inspection of the learned District judge. In the altered state of the scheme when he says that no part of this area touches the land reserved for park, can it be said in these circumstances that the learned District Judge has exercised his jurisdiction with material irregularity? The answer can be easily found in the language of the Hon'ble the Supreme Court in the case cited above. Let me read (sic)

In our opinion, the High Court had no jurisdiction to interfere with order of the first appellate court. It is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction Under Section 115 of the Civil Procedure Code.

The learned Counsel has not been able to tell me in so many words what the material irregularity is. The situation changed and the injunction was modified. In these circumstances, this revision has no force and it is dismissed. There will be no order as to costs.


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