MAGNA Vs. RUSTAM

JUDGEMENT

(1.) THIS is a revision application by two of the defendants against an appellate order of the District Judge Bhilwara ordering demolition of constructions made in defiance of an order of temporary injunction passed under Order 39 Rule 2 Code of civil Procedure.

(2.) THE facts which have given rise to this application are these. Between the houses of the plaintiffs and Magni Ram and Baloo Ram defendants there is a piece of enclosed open land marked ABCD in plan Ex. 17. This land is situated to the south of the house of the plaintiffs. Eight Baris marked H. to Order 8 Roshandans marked Y1 to Y8 and one window marked G of the house of the plaintiffs open towards this land. Further 9 open projecting spouts of the house of the plaintiffs discharge on this land. Three of these spouts are on the first floor and marked P, q and R. Six of them are on the second floor and are marked S to X. There is an opening EF in the northern wall of the house of the contesting defendants through which they could have access to the land. ABCD. It is through this opening EF that the water from the house of the plaintiffs discharging on the land ABCD flows out through the house of the contesting defendants. The contesting defendants started making constructions on the land ABCD in the year 1953. The present suit was then instituted. An order of temporary injunction restraining the contesting defendants from proceeding further with the constructions was passed against them. This order was defied and the constructions were raised so as to block the three spouts P, Q and R and all the 17 apertures. The plaint was thereafter suitably amended. The case of the plaintiffs was that either they were the exclusive owners of the land ABCD or they were the joint owners of it along with the defendant or the land belonged to some one else and they had acquired a prescriptive right of easement with regard to the 17 apertures and the 9 spouts. They prayed that the constructions made by the contesting defendants on the land abcd may be ordered to be- demolished and a permanent injunction may be granted to safeguard their rights in respect of the apertures and the spouts.

(3.) DURING the pendency of the suit the lower appellate court passed an order requiring the applicants to demolish the constructions which they had made in defiance of the order of temporary injunction. Against that order the present revision application, has been filed. The contention on behalf of the applicants is that no such order is warranted by any provision contained in the Code of Civil procedure and that as there is a specific provision contained in Rule 2 (3) of Order 39 for imposing penalty for disobedience of the order Pf injunction there is no scope for the exercise of any inherent power of the court.