VIMAL SHAH Vs. MAHESH CHANDRA SHAH

JUDGEMENT

(1.) The plaintiff petitioner on 01.02.2011 had filed a suit in relation to the property as described at the foot of the plaint for claiming a decree of permanent injunction in relation to the property in dispute. The said Suit thus instituted accompanied with an application under Order 39 Rule 1 and 2. The Court of Civil Judge (J.D.) by the judgment dated 21.02.2011 had considered the property of the application under Order 39 Rule 1 and 2, as well as the objection under Order 39 Rule 4 paper No. 17ga as filed by defendants in objection to it and thereby by the temporary injunction order dated 21.02.2011 the defendants were restrained from interfering over the property, i.e. House No. 39, and particularly the part which was in possession of the plaintiff. The injunction was granted in relation to the property, which was demarcated by the plaintiff (petitioner herein) in the plaint map, which was filed along with a Suit being paper no. 5ka and the property over which the injunction was granted was described as to be figure A, B, C and D.

(2.) The nature of injunction, which was granted by the learned Trial Court, vide its order dated 21.02.2011, it was to the effect that the parties to the Suit were restrained from raising any construction or interfering over the property in question, which was being occupied by the plaintiff/petitioner. Relevant portion of the judgment is quoted hereunder:

(3.) Its being aggrieved against this order, dated 21.02.2011 passed by the Civil Judge (Jr. Div.) Nainital the defendants (respondents herein) had filed a Miscellaneous Civil Appeal No. 7 of 11 'Sri Mahesh Chandra Sah and Others vs. Vimal Sah' by invoking the provisions contained under Order 43 Rule 1 (r), the learned Appellate Court after considering the propriety of the temporary injunction, which was granted by the order dated 21.02.2011 in favour of the plaintiff (petitioner herein) while passing the impugned order under challenge in the present writ petition and as rendered in the aforesaid Civil Miscellaneous Appeal on 15.04.2011, had passed an order to the effect that while partially allowing the appeal of the defendants/respondents the parties were restrained from raising any construction, but, however, a rider was attached to it was to the effect that the defendants would be permitted to raise the construction over the portion of the property i.e. apart from the property, which was described in paper No. 18ga/6, which was part of the property bearing Municipal No. 38A. The direction of appellate court vide its order dated 15.04.2011, is under challenge in the writ petition. Operative portion of the judgment is quoted hereunder: