NIGAR SULTAN Vs. RACHAVVA

JUDGEMENT

(1.) The captioned writ petition is filed by the defendants feeling aggrieved by the order passed by the appellate court in M.A.No.16/2020 c/w 17/2020 wherein the appellate court has reversed the common order passed by the trial court and application filed by the plaintiffs in I.A.No.II under Order 39 Rule 1 and 2 of CPC is allowed and present petitioners/defendants are restrained from putting doors and windows on EF wall and consequently, the application filed by the petitioners/defendants in I.A.No.IV seeking injunction against the plaintiffs from interfering with their right to use the common passage is rejected.

(2.) Facts leading to the case are that, respondents/plaintiffs instituted a suit for declaration and injunction against the petitioners/defendants not to fix the doors and windows on EF wall. Plaintiffs filed an application in I.A.No.II to restrain the defendants from putting up doors and windows on EF wall. On examination of the divergent orders, this court would find that though appellate court has rightly taken cognizance of title documents of the parties while examining the existence of common passage between the properties of the plaintiffs and defendants, however, I am of the view that appellate court erred in rejecting the application filed by the present petitioners in I.A.No.IV. The appellate court referring to prima facie material has concurred with the finding of the trial court in regard to existence of passage. If appellate court held that there is common passage between plaintiffs property and defendants property, then I am of the view that appellate court erred in reversing the order of the trial court passed on I.A.No.IV where defendants have also sought temporary injunction to restrain the plaintiffs not to interfere with their right to use the common passage.

(3.) Though I am not inclined to interfere with the order passed by the appellate court on I.A.No.II, however this court would find that reasons assigned by the appellate court while rejecting I.A.No.IV suffers from perversity and therefore, would warrant interference at the hands of this court. If the appellate court referring to the title documents has come to the conclusion that there is common passage, defendants are also entitled to use the common passage pending consideration of the suit.