AJAY KUMAR JAIN Vs. PAWAN KUMAR VAISHYA

JUDGEMENT

(1.) This writ petition has been filed by the petitioners-plaintiffs (hereinafter referred to as 'the plaintiffs') against the order dated 7.8.2019 passed by the Appellate Court in Civil Misc. Appeal No. 12/2017, whereby the appeal filed by the plaintiffs has been dismissed and the order dated 3.6.2017 passed by the Trial Court dismissing the plaintiffs application under Order 39 Rules 1 and 2 C.P.C. has been affirmed.

(2.) Facts of the case are that the plaintiffs filed a suit against the respondent-defendant (hereinafter referred to as 'the defendant') for permanent injunction before the Trial Court. Alongwith the suit, an application for Temporary Injunction under Order 39 Rules 1 and 2 C.P.C. was also flied. It was submitted that the plaintiffs are in the ownership and possession of two shops situated on ground floor of Jain Market, Old Post Office Chauraha, Railway Station Road, Dholpur. It was submitted that albeit the roof of the aforesaid shops was not purchased by them, but it belonged to them. It was also submitted that from the said shops they are doing the whole sale business of medicines, with which the defendant had no concerned. It was submitted that the defendant raised construction on the disputed roof of the aforesaid shops without the plaintiffs' consent and without obtaining the permission from the Municipal Council, Dholpur and put the building material there. It was further submitted that the defendant wanted to demolish the disputed roof and to destroy the medical business of the plaintiffs. It was prayed that the defendant be restrained from raising the construction on the disputed roof without consent of the plaintiffs and without obtaining the permission from Municipal Council, Dholpur.

(3.) The defendant put in appearance and filed the reply thereto. It was submitted that in regard to shops in question and other property, a partition suit was pending in between the defendant Pawan Kumar and his brothers. It was further submitted that the plaintiffs did not purchase the roofs of the shops in question, therefore, neither could they be the owner of the roofs nor were having any right to file the suit in regard thereto. It was also submitted that for the purpose of marriage of defendant's son, he was using the upper part of the shops in question, of which he is in possession. On the roof of the disputed shops, defendant's residence gate are opened, which are being used for entry and exit purposes. On the said roof, defendant's latrine and bathroom have been constructed and the roof is being used for sitting, sleeping and playing purposes. The disputed roof was constructed 50 years ago, which required to be repaired, therefore, he was repairing and white washing the same and not raising any new construction thereon. He prayed for dismissal of the plaintiffs' application for temporary injunction.