RAJ KAMAL RASTOGI Vs. MOOL CHAND

JUDGEMENT

(1.) THIS is an appeal against the order dated 20-4-1989 granting temporary prohibitory as well as mandatory injunction to the plaintiffs- respondents for the removal of the construction on the disputed well and to restore the same in its normal condition.

(2.) AT the time of presentation of the appeal, appearance was put in by the respondents and a counter-affidavit was filed. Subsequently rejoinder- affidavit was also filed and the parties agreed that the appeal may be disposed of at this very stage. In these circumstances the appeal has been heard on merits and the parties submit that all the necessary papers have been filed by them.

(3.) SRI R. H. Zaidi, learned counsel for the plaintiffs respondents, has, however, supported the decision and submitted that necessary ingredients very much exist in the order and the same should not be examined in a pedantic manner but in a spirit in which the order has been made. During the argument, an effort was made to urge on the merits of the rival claims. A reference in this regard was made to Section 116 of the U. P. Municipalities Act, the appellant's contention being that under the aforesaid section, all public wells situate within the Municipality vested in the Municipal Board and the local Board had the power to manage the same. SRI Zaidi, however, submitted that the aforesaid provision did not apply to all kinds of public well. Be that as it may, it is not proper at this stage to give any opinion on the question as it is likely prejudice the rights of the parties and the same is being deliberately left to be decided by the trial court.