AWADH NARAIN Vs. IVTH ADDL DISTRICT JUDGE JAUNPUR

JUDGEMENT

(1.) These are two connected writ petitions. Writ Petition No. 8617 of 1992 has been filed by Awadh Narain in which Shitla Prasad is respondent No. 3. Writ Petition No. 8798 of 1992 has been filed by Shitla Prasad in which Awadh Narain is respondent No. 2. The writ petition filed by Awadh Narain, i.e., Writ Petition No. 8617 of 1992 is the main case and, therefore, that is treated as leading case.

(2.) The facts of Writ Petition No. 8617 of 1992 appear to be that Shitla Prasad. respondent No. 3 filed a suit. i.e., Original Suit No. 1550 of 1991 for permanent injunction for restraining the present petitioner from interfering in his peaceful possession and also from making any construction over the suit land and from forcibly ousting him. It was stated by the plaintiff that no partition between the parties has taken place by metes and bounds but the defendant by taking forcible possession has encroached the additional land for which he is not entitled. It was pleaded by the plaintiff that by raising of construction, plaintiff will suffer irreparable loss. Along with the plaint he has also filed an application for grant of temporary injunction by which it was prayed that defendant be restrained from raising any construction. A commission was issued who reported that construction to some height has been raised. The trial court by its order dated 6.1.1992 granted injunction in favour of the plaintiff and restrained the defendant from raising any construction over the land in dispute. Against the order of the trial court, defendant-petitioner filed an appeal which was also dismissed by the order of the Vth Additional District Judge dated. 23.1.1992 which has been impugned in this petition by Awadh Narain.

(3.) Writ Petition No. 8798 of 1992 has been filed by Shitla Prasad challenging the judgment of the Vth Additional District Judge dated 23.1.1992 by which although the appeal of the Awadh Narain was dismissed but an observation has been made directing the trial court to dispose of the application 27C in the light of fresh report by Commissioner about position of construction. The grievance of the petitioner in this petition is that the appellate court has made observation on the basis of which the trial court may permit the defendant to complete the construction.