MAKODABHAI CHHAGANBHAI PATEL Vs. HIMATLAL MANSUKHLAL BHATT

JUDGEMENT

(1.) RULE. Shri Harshit Tolia, learned advocate for the respondent No. 2 wavies service of notice of admission on behalf of the respondent No. 2. With the consent of the learned advocate for the respective parties, the matter is taken up for final hearing today.

(2.) BY way of this petition under Article 227 of the Constitution of India, the petitioners-original defendants No. 1 and 2 have prayed for an appropriate writ, direction and / or order quashing and setting aside the judgment and order passed by the learned Additional District Judge and Presiding Officer, Fast Track Court No. 5, Bhavnagar dated 14. 8. 2008 in Miscellaneous Civil Appeal No. 49 of 2008 in allowing the same by quashing and setting aside the order passed by the learned 5th Joint Civil Judge ( S. D.), Bhavnagar dated 8. 4. 2008 below application Exh. 5 in Regular Civil Suit No. 113 of 2008.

(3.) RESPONDENT Nos. 1 and 2 herein original plaintiffs had instituted Regular Civil Suit No. 113 of 2008 against the petitioners and others in the Court of learned Principal Civil Judge (S. D.), Bhavnagar for permanent injunction inter alia, praying that the petitioners herein original defendant Nos. 1 and 2 may not put any sub plotting plan with respondent Nos. 3 to 5 for sanction and if it is placed, then the defendant Nos. 3 to 5 may not sanction the said plan and restrain the defendant Nos. 3 to 5 from sanctioning and also restraining the defendant Nos 3 to 5 from permitting the petitioners to put up any construction. It was further prayed that the petitioners may not act in any manner which would affect their right on the disputed road. It was the contention on behalf of the plaintiffs that 10 ft x 17 ft road, which was in dispute was of the ownership of the original plaintiffs and they have exclusive right to use the said road. In the said suit, the plaintiffs submitted an application Exh. 5 for temporary injunction praying that the petitioners-defendant Nos. 1 and 2 may not take any steps to cause injury to their rights to pass through the road, east-west: 10 ft and north-south: 72ft and that the petitioners may not create any right and also prayed that the petitioners-defendant Nos. 1 and 2 may not put any plan with the Corporation and the respondent Nos. 3 to 5 may not sanction any plan; if already submitted and further prayed that even if respondent Nos. 3 to 5 desired to sanction the said plan, then restrain them from putting up any construction in accordance with the said plan. The said application was opposed by the defendants. It was submitted that the plans have already been sanctioned and they are putting up the construction on their own plots as per the sanction plan and that they are not putting up any construction on the disputed road and, therefore, it was requested not to grant any injunction restraining them from putting up any construction on their plots as per the sanction plan sanctioned by the Corporation. The learned trial Court after hearing the parties, rejected the application Exh. 5 by order dated 8. 4. 2008 holding that the plaintiffs have no exclusive right to pass through the disputed road and it cannot be said that disputed road is of their ownership. The trial Court also came to the conclusion that the predecessor in title of the petitioners were also using the said disputed road. Being aggrieved and dissatisfied with the order passed by the learned trial Court below Exh. 5 in dismissing the same, the respondent Nos. 1 and 2 herein original plaintiffs preferred Miscellaneous Civil Appeal No. 49 of 2008. Initially, no interim relief was granted in favour of the plaintiffs pending appeal. After hearing the parties, the Appellate Court by the impugned order dated 14. 8. 2008 allowed the said appeal and granted injunction in terms of paragraph 11 (1), (2) and (3) of the Exh. 5 application against the petitioners till final disposal of the suit by quashing and setting aside the order passed by the learned trial Court below Exh. 5. Being aggrieved and dissatisfied with the impugned order passed by the learned Appellate Court, the petitioners-original defendants No. 1 and 2 have preferred the present Special Civil Application under Article 227 of the Constitution of India.