JOYNARAIN SAROGI Vs. BROJENDRA NATH MISRA AND OTHERS

JUDGEMENT

(1.) This petition in revision has been filed by the plaintiff against an order of the learned Munsif of Purulia dated 29-5-1950 in Title Suit No. 47 of 1950

(2.) The facts leading to this application may be briefly stated as follows :

(3.) The plaintiff instituted the suit in question for a permanent injunction against the principal Defendant who are the opposite party here restraining them from causing obstruction to a certain latrine by making constructions so as to prevent the methar from servicing the latrine in question and also for removal of the construction. The pltf.'s case is that he purchased a house belonging to one Hamidunnisa on 10-8-1948. He has been making certain construction and has also constructed a latrine by the side of the privy in the house of Hamidunnisa. He alleges that the Defendant have their residential house contiguous east of the pltf.'s land and building, that the latrine in the pltf.'s house used to be serviced through a galli from a very long time and that the Defendant commenced constructing a gate and a door over the said galli near the trap-door of the pltf's latrine and thereby the plaintiff apprehended that the Defendant by such a construction would stop the servicing of the pltf's latrine through the galli. He, therefore, instituted the suit with the prayers aforesaid. The day when the suit was instituted, that is, on 4-2-1950 the plaintiff also filed an application for ad interim injunction restraining the Defendant from constructing the building so as to block the passage in question and the learned Munsif, before whom the suit was filed, granted an ad interim injunction and issued notice upon the Defendant opposite party to show cause against this order. Eventually after hearing the parties the learned Munsif on 1-3-1950, dissolved the injunction. Against this order the petitioner preferred an appeal to tho learned Dist. J. of Manbhum-Singbhum on 7-3-1950. He could not prefer the appeal earlier because the Holi holidays intervened and the learned Dist. J., after hearing the parties, on 11-5-1950, allowed the appeal. The learned Dist. J, in doing so ordered that the ad interim order of injunction passed by the learned Munsif should be made absolute till the disposal of the suit. I should have stated that on the day the appeal was filed the appellate Ct. also had granted an ad interim injunction order. In the meantime it appears the Defendant opposite party taking advantage of the order of the learned Munsif vacating the order of ad interim injunction on 1-3-1950 and the delay, which was very natural, in filing the appeal on 7-3-1950, hastened on with the construction. The petitioner moved the learned Munsif for directing the opposite party to remove the construction which had been made during this period, that is, between the date of the vacating of the ad interim order by the learned Munsif on 1-3-1950 and the date of filing of the appeal and the ad interim injunction order by the appellate Ct. on 7-3-1950. The learned Munsif by his order dated 29-5-1950 refused to interfere and hence the present application The Munsif observed in his order that the construction by the defts during the period was legally authorised because there was nothing to prevent the deft.-Petitioners from doing so.