YASHODA DEVI Vs. IST A D J

JUDGEMENT

(1.) Petition in hand has been filed assailing the judgment and order dated 28.5.2004, passed by 1st Addl. District Judge, Ghazipur, whereby Misc. Appeal No. 160 of 1998 was allowed and in consequence order passed by trial court dated 30.5.1998 granting temporary injunction in O.S. No. 104 of 1998 was set aside. As a matter of fact this petition was heard and allowed on 26.7.2004 attended with the observation that reasons would follow. Herein below are reasons.

(2.) Facts forming background to the suit are that plaintiff Keshav Prasad instituted a suit for partition of the property as described in the plaint map. The plaint allegations are that the property in suit was ancestral property in which he had one-third share. It is further alleged that a private partition mutually acceptable to all, had taken place in the year 1991 between the parties as a consequence of which the property marked and described in the plaint map by letters A, A-2, A-3, A-4 and A-5 fell to the share of the plaintiff and plaintiff invested huge amount for the improvement of the property including pumping set. It is further alleged that the plaintiff constructed three kotharies. It is also alleged that plaintiff who was in the service of Indian Railways, retreated to his village after retirement and carried other improvements which included installation of rural gas equipments, etc. It is further alleged that when plaintiff wanted to make construction on land assigned to him as his share in order to make it habitable, opposite parties created hindrance thereon. It is also alleged that plaintiff has no male issue except one daughter and the defendants have covetous eyes over his property. Since parties have disputed the private partition, the suit for partition has been instituted by the plaintiff.

(3.) It would transpire from the record that suit was filed with accompanying application under Order XXXIX, Rule 2 (1), C.P.C. for the relief of restraining the opposite parties from demolishing the constructions and from cutting trees or altering the position on the spot or creating obstructions in the use and enjoyment of the property. An objection was filed to that application. The trial court by means of order dated 30th May, 1998, issued temporary injunction restraining defendants from demolishing any construction situated on the land in suit and also directed to maintain status quo on the spot. It was clarified in the order that parties had right of repairs but they were inhibited to make new construction. Aggrieved by the order an appeal was preferred by the opposite party which was allowed and in consequence, the order of the trial court was set aside.