SONARAM ALIAS SOHAN LAL Vs. PABURAM

JUDGEMENT

(1.) THIS writ petition has been filed against the order of the learned Additional Dist. Judge No. 1, Jodhpur dtd. 1.8.2009, whereby the plaintiffs - appellants' appeal against the order rejecting the temporary injunction application was allowed by the learned appellate Court and set aside the order of the learned trial Court dtd. 29.5.2006.

(2.) THE learned appellate Court directed the defendants to provide way through the agricultural field of the defendants to the plaintiffs - respondents. Being aggrieved by the said order, the defendants have approached this Court by way of present writ petition.

(3.) ON the other hand, Mr. Sajjan Singh, learned Counsel for the plaintiffs - respondents urged that both the Courts below had found that the way in question on which the plaintiffs claimed the right of easement was found by the Commissioner's report and the trial Court had refused injunction even after finding prima facie case in favour of the plaintiffs on the ground that no such mandatory injunction could be given in favour of the plaintiff. The earlier suit filed by the present defendants - petitioners was withdrawn on 27.9.2003 upon a compromise between the parties in which it was found that the way through the defendants' agricultural field was 15ft. of width and similar reports were made by the Panchas on 25.10.2003 and in the meeting held on 31.3.2003 on account of compromise between the parties, the said way was opened again. Apparently, the learned Court below proceeded to grant this mandatory injunction while allowing the application for temporary injunction on the basis of this compromise between the parties. Mr. Sajjan Singh, learned Counsel for the plaintiffs - respondents relying upon the decision of this Court in the case of Prahlad Singh v. The President, Dist. Consumer Disputes Redressal Forum, Bikaner reported in, 2005 (5) RDD 1214 (Raj) submitted that in injunction, if one of the plaintiff -appellants had expired, the appeal does not automatically abate and therefore, the impugned order dtd. 1.8.2009 passed by the appellate Court cannot be said to be nullity as contended by Mr. N.R. Chaudhary. He also submitted that in the case of Amba Bai (supra) relied upon by the learned Counsel for the defendants -petitioners himself, it has been also observed in para 14 that "Failure on the part of the legal heirs of Radhulal to get themselves impleaded in the Second Appeal and pursue the matter further shall not adversely affect the plaintiff -decree -holder as it would against the mandate of Rule 9 of Order 22, Code of Civil Procedure. The impugned order is, therefore, not sustainable in law and the same is set aside and the appeal is allowed. The Executing Court may proceed with the execution proceedings."