BABU AND OTHERS Vs. CHATURBHUJ

JUDGEMENT

(1.) This revision has been directed against the order dated 1.6.90, passed by learned Additional District Judge Karauli, by which he confirmed the order of the trial court dated 25.4.90, granting temporary injunction against the petitioners.

(2.) The relevant facts giving rise to this revision are that the plaintiff,non-petitioner, in the year 1973, purchased immovable properties including the Tibara. Later on when the petitioners were raising constructions over the Tibara, the plaintiff-non-petitioner filed a suit for injunction. The plaintiff also filed an application for temporary injunction, restraining the petitioners from raising any constructions on the roof of 'Tibara'. The petitioners submitted their reply to the injunction application, in which they pleaded that there is one Atari on the Tibara, which is owned by the defendant-petitioners. The trial court vide its order dated 25.4.90, held that the defendant-petitioners failed to explain that when the plaintiff-non-petitioner purchased the Tibra and other properties in the year 1973, how the petitioners came in possession of the Atari. The learned Munsif further held that as the plaintiff-non,petitioner has purchased the two stored house including the Tibara, it will be presumed that all the constructions raised over the Tibara belongs to the plaintiff-non-petitioner. After coming to this conclusion, the trial court allowed the application for temporary injunction and restrained the petitioners from raising any constructions over the roof of the Tibara. Aggrieved with this order, the petitioners filed an appeal which was dismissed by the learned Additional District Judge, Karauli vide the impugned order dated 1.6.90. This order has been challenged by the defendant-petitioners in this revision.

(3.) It has been argued by Mr. S.K. Gupta for the petitioner. That the plaintiff does not came with clean hands in as much as he did not mention in the application for temporary injunction that there was a Atari on the roof of the tibara. He argued that under these circumstances, the injunction application should have been dismissed by the lower courts. He further argued that the petitioners purchased the Atari in the year 1953 in court auction, still the lower appellate court rejected his appeal. He further argued that there is a mention of this fact in the order of the lower appellate court. He argued that when the lower appellate court did not take into consideration the Sale-Deed only on the ground that the same was not produced before the trial court and thus the lower appellate court committed illegality and irregularity in the exercise of its jurisdiction. He further argued that the case be remanded back to the lower appellate court for deciding the appeal afresh after allowing the petitioners to produce the sale-deed.