RAM KISHAN Vs. JAI NARAIN

JUDGEMENT

(1.) THIS is civil revision and has been directed against the order dated 5.5.1998, passed by the Addl. Distt. Judge, Rohtak, who affirmed the order of the Trial court dated 6.2.1996, vide which the application of the plaintiffs under Order 39 Rules 1 and 2, CPC, was allowed and the defendants were restrained from raising any construction towards the western side of the houses of the plaintiffs and they were also directed to remove the encroachment raised by them within a week from the date of passing of the order, failing which coercive methods will be used to clear the street in question.

(2.) THE case set up by the plaintiffs before the trial Court was that on the western side of their house, there is a public street and the respondents, whose house abuts to that street, had been throwing the dirty/rain water. The defendants have encroached upon the street. The allegations of the plaintiffs have been denied. Both the courts below came to the conclusion that, prima facie, there was a street on the western side of the house of the plaintiffs and the defendants had made certain encroachment. The reasons given by the first appellate court in dismissing the appeal of the present petitioners are given in paras 9 to 16 of the impugned order dated 5.5.1998, which read as under :

(3.) COUNSEL for the petitioners submitted that the courts below have relied upon the judgment and decree of the previous suit in which the plaintiff- respondents and a stranger were a party. That suit was decreed on 21.3.1983 on the statement of the defendant.