VIRENDRA VIJAY Vs. NARENDRA KUMAR

JUDGEMENT

(1.) This revision petition has been directed against the order dated 17.8.2000 passed by Additional District Judge No. 4, Kota in Civil Misc. Appeal No. 40/2000, whereby he allowed the appeal preferred by defendant Nos. 1 & 2 against the order dated 26.5.99 passed by Addl. Civil Judge (Jr. Dn.) No. 5 (North) Kota whereby the application under Order 39 Rules 1 & 2 Code of Civil Procedure filed by plaintiff petitioner has been allowed.

(2.) The petitioners-plaintiff had filed a suit for permanent injunction against the defendant respondents for restraining them from raising any construction on Chabutri measuring 41/2 ft. x 10 ft. used for public and that the Nagar Nigam be restrained from issuing sanction for constructions. Along with the suit the application for interim order was filed under Order 39, Rule 1 & 2 CPC.

(3.) It is submitted that the respondent had purchased the house on 13.2.90 from Kailash Chand Vijay. The alleged Chabutri is situated in public way on Govt. land and is used for the common public for sitting and that it is situated below the balcony that i.e projection of the house of petitioner. It is also submitted that the respondents 1 & 2 had also constructed the balcony. The respondents had taken up the plea that the Chabutri in dispute is not used by public and they had taken the permission from the Municipal Corporation. The Municipal Corporation filed the reply and submitted that the dispute is in between the plaintiff and respondents 1 & 2. The trial court had granted interim injunction as prayed for in favour of the plaintiff. The defendants filed the appeal, which appeal has been accepted by the appellate court.