SARESHTA DEVI Vs. PARKASH CHAND

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the judgment dated 17.03.2018, passed by learned District Judge, Hamirpur, District Hamirpur, H.P., in Civil Misc. Appeal No.12 of 2015, having been filed by the petitioner (hereinafter referred to as the 'plaintiff'), laying therein challenge to order dated 20.02.2015, passed by learned Civil Judge (Senior Division), Court No.1, Hamirpur, H.P., in CMA No.170 of 2014 in Civil Suit No.114 of 2014, whereby an application under Order 39 Rule 1 & 2 Civil Procedure Code having been filed by the plaintiff came to be dismissed, petitioner has approached this Court in the instant proceedings filed under Art. 227 of the Constitution of India, praying therein to allow his application filed under Order 39 Rule 1 and 2 CPC, after setting aside the impugned order/judgment passed by the learned Courts below.

(2.) Facts, as emerge from the record are that plaintiff filed suit for permanent prohibitory injunction and alternative for possession by way of demolition against the respondent (hereinafter referred to as the defendant). Alongwith the aforesaid suit, plaintiff also filed an application under Order 39 Rule 1 and 2 Civil Procedure Code for restraining the defendant, his agent servants, assigness and family members from extending the construction/project on of his house from Khasra No.499, measuring 353.00 Square Metres towards the house /land of plaintiff comprised in khata No.279, Khatauni Nos. 380 and 382, Khasra Nos. 487 and 491, measuring 118.38 square metres as per jamabandi for the year, 2007-08, situated in Up Mahal Anu, Mouza Matti Tihra, Tehsil and District Hamirpur, H.P. Plaintiff averred in the application that suit land is jointly owned and possessed by the parties alongwith other co-sharers, however, in Khasra No.499 there exists a house of defendant consisting of 8-9 rooms, whereas in Khasra No.487 and 491 there is house/Abadi and land of the plaintiff. Plaintiff specifically averred in the application that suit land has not been partitioned till date through metes and bounds, but respondent is hellbent in extending the projection of his house situated over Khasra No.499 towards the land and house of plaintiff comprised in Khasra Nos.487 and 491 without leaving set-back and as such, he be restrained from doing so during the pendency of suit. Aforesaid application having been filed by the plaintiff came to be dismissed by the learned Civil Judge (Senior Division), Court No.1, Hamirpur, H.P. vide order dated 20.2.2015.

(3.) Being aggrieved and dissatisfied with the aforesaid order, plaintiff preferred an appeal under Order 43 Rule (1)(r) read with Sec. 104 of the Code of Civil Procedure in the Court of learned District Judge, Hamirpur, H.P., however fact remains that same was also dismissed. In the aforesaid background, plaintiff has approached this Court in the instant proceedings, praying therein to allow his application filed under Order 39 Rule 1 and 2 CPC, after setting aside the impugned judgment/order passed by the learned courts below.