JHAMMAN @ JHAMMAN LAL Vs. RAMAVATAR @ RAMU SAINI

JUDGEMENT

(1.) CHALLENGE in this writ petition is to the order dated 23rd January, 2009, whereby the learned Additional District Judge No. 1, Kishangarh Bas, District Alwar allowed the appeal and set -aside the order dated 29th May, 2008 passed by Civil Judge (Jr. Division), Kishangarh Bas, whereby he partly allowed the application for temporary injunction filed by the Plaintiff -Petitioner under Order 39 Rule 1 and 2 CPC.

(2.) LEARNED Counsel for the Petitioner contended that on the basis of a mutual understanding arrived at between the parties, the Petitioner -Plaintiff was using a way of 10 Ft. wide for entry and exit from his house, but the Defendant -Respondent raised the construction over the disputed land, as such he filed a suit for prohibitory injunction along -with the application for temporary injunction before the learned trial court. The learned trial court, vide its order dated 29.5.2008 partly allowed the application and granted injunction in favour of the Petitioner -Plaintiff. Being aggrieved with the order dated 29.5.2008, the Defendant -Respondent preferred an appeal. The appellate court sans considering the facts and circumstances of the case, arbitrarily allowed the appeal and set -aside the order of the trial court. Hence, the impugned order be set -aside and order of the trial court dated 29.5.2008 be restored.

(3.) HAVING heard the learned Counsel for the parties and carefully perused the relevant material on record, it is noticed that the Plaintiff -Petitioner neither produced any evidence to the effect that the land in question was a common land nor to the effect that the land in question was being used by him as a Rasta. There is nothing on record to evince that there was a mutual understanding between the parties to use the land in question as a Rasta, hence the argument, as put forth by the learned Counsel for the Petitioner is not found to be tenable. Otherwise too, the Commissioner's report also does not favour the Plaintiff -Petitioner. Without causing prejudice to either of the parties, Commissioner's report exhibits two gates opening both in the east and west directions of the Plaintiff's house and these gates are opening on public way. The Petitioner has been claiming third 'Rasta' in north direction. There is not even a shred of evidence which may suggest that the disputed land is Rasta to be used by both parties. The learned appellate court is found to have rightly allowed the appeal and set -aside the order of the trial court. There does not appear to be any illegality or perversity in the impugned order passed by the court below, conversely it is found to be just and apt, which does not call for any intervention.