GORISHANKAR Vs. JAGMOHAN PRASAD AGARWAL

JUDGEMENT

(1.) The present writ petition has been filed by the petitioner-plaintiff under Articles 226 & 227 of the Constitution of India, challenging the order dated 26.10.2013 passed by the Additional District Judge No.5, Kota (hereinafter referred to as "the appellate court") in the Civil Misc. Appeal No.13/2012, whereby the appellate court has allowed the appeal filed by the respondent-defendant, and reversed the order dated 23.06.2012 passed by the learned Civil Judge (Junior Division) Kota (South) (hereinafter referred to as "the trial court") in misc. application No.200/2012.

(2.) The short facts giving rise to the present petition are that the petitioner-plaintiff has filed the suit against the respondent-defendant seeking permanent injunction for restraining the defendant from dispossessing the plaintiff from the suit premises being houses No.4-A-20 and 4-A-21 originally belonging to late Dr. Jogendra Prasad Gupta, the brother of the respondent No.1-defendant. According to the petitioner-plaintiff both the houses were given to him by the said late Dr. Jogendra Prasad Gupta in the year 1991 as they had good relations with each other and since then the petitioner was staying in the said houses. It is further case of the petitioner-plaintiff that late Dr. Jogendra Prasad Gupta died on 23.08.2011, and thereafter the respondent-defendant, who happened to be the brother of Dr. Jogendra Prasad Gupta, started giving threats to the petitioner and harassing him. According to the petitioner, the respondent was bent upon harassing the petitioner, and dispossessing him from the suit premises, and hence the suit was filed. The petitioner had also filed an application under Order XXXIX Rule 1 & 2 of CPC seeking temporary injunction of similar nature, pending the suit. The respondent-defendant had resisted the suit as well as the T.I. application by filing reply contending interalia that the petitioner-plaintiff was permitted to live in one room of house No.4-A-20 as a caretaker by late Dr. Jogendra Prasad Gupta to look after the house, and that the petitioner was never given possession of both the premises by Dr. Jogendra Prasad as alleged by the plaintiff. It was further contended that the petitioner had broken down the common wall existing between the two houses and had illegally encroached upon the house bearing No.4-A-21. It was also contended that after the death of Dr. Jogendra Prasad Gupta, the respondent-defendant had become the owner of both the houses by virtue of the will executed by his brother late Dr. Jogendra Prasad Gupta, and that both the houses have been registered in the name of respondent-defendant in the Rajasthan Housing Board, Jaipur since 11.04.2012.

(3.) The trial court after hearing the contentions raised by the learned counsels for the parties, had allowed the application filed by the petitioner-plaintiff for temporary injunction, restraining the respondent-defendant, from dispossessing the plaintiff from the houses bearing Nos.4-A-20 and 4-A-21, situated at Mahaveer Nagar, Vistar Yojna, Kota, without following the due process of law. Being aggrieved by the said order, the respondent-defendant had filed the appeal being No.13/2012 before the appellate court, which has been allowed by the appellate court vide the impugned order dated 26.10.2013.