SATYA PRAKASH Vs. IST ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) THE instant writ petition is directed against the order and judgment dated 29 -8 -2000, Annexure -1 to the writ petition, passed by Ist Additional District Judge, Etah whereby the order and judgment dated 18 -2 -1999 passed by the learned trial Court granting temporary injunction in favour of the petitioners under Order 39 rules 1 and 2, CPC has been set aside and appeal filed under Order 43, Rule 1 (r) CPC was allowed

(2.) THE factual matrix of the case necessary to be noticed for disposal of the present writ petition are that suit No. 576 of 1998 was filed by the plaintiff petitioners and one Smt. Har Pyari Devi (who died during the pendency of Misc. Appeal), against the contesting respondents in the Court of Civil Judge (Junior Division) Kasganj, Etah, as the contesting respondent - defendant Ist set threatened to demolish the walls AD, DE and EF which is shown in red ink in the plaint, belonging to the petitioners and defendants IInd set and in their possession to make a passage through it and also threatened to open door and window in these walls. The aforesaid suit was filed on the basis of registered sale deed dated 24 -3 -1933 executed in favour of their grand father, Ayodhya Prasad and his brother, Shiv Dayal seeking relief of permanent injunction against defendant Ist set who is impleaded as respondent No.3 in the present petition. On the same date of filing of suit an application supported with affidavit for grant of temporary injunction under Order 39, Rules 1 and 2, CPC was also moved. The learned trial Court granted interim injunction on the date of filing of suit.

(3.) THE defendant Ist set filed counter affidavit before the trial Court stating therein that his predecessors in interest had purchased adjoining part of building on 7 -2 -1929 and on the basis of which the walls in question are under his ownership as these walls are part of his latrine. It is further averred in the counter affidavit that Eastern and Western walls in dispute are not part of sale deed dated 24 -3 -1933. A true copy of the counter affidavit filed by defendant Ist set before the trial Court is filed and marked as Annexure -7 to the writ petition.