ANANDILAL Vs. TEJRAM AND ORS.

JUDGEMENT

(1.) This writ petition under Article 227 of Constitution of India, preferred by petitioner/defendant is directed against confirmation order of appellate Court dated 08/07/2017 rendered in C.M.A. No.35/2017, disposing of application under Order 39, Rule 1 and 2 of C.P.C.

(2.) Necessary facts relevant for disposal of writ petition are to the effect that the suit for permanent injunction is pending consideration inter alia contending that the petitioner residing in the area has raised construction of part of residential house encroaching common free public way, as such has caused obstruction in use of passage by residents including plaintiff thereby violating easementary right of public way. The defendant has filed written statement and denied the plaint allegations.

(3.) While deciding the application for injunction filed under Order 39, Rule 1 &2 of C.P.C, the trial Court has injuncted the defendant from raising construction with the prima-facie finding that offending construction is raised on the public land on the premise that, firstly, the defendant has not raised construction without permission of Gram Panchayat, secondly, there is no material to demonstrate demarcation of land and thirdly, from the photographs submitted by the defendant, the defendant has encroached upon the public land. The aforesaid order has been confirmed by the appellate Court.