SMT. SUSHMA Vs. KAN SINGH AND ORS.

JUDGEMENT

(1.) This writ petition has been filed against the order dated 01.06.2016 passed by Additional Civil Judge No. 1, Bikaner (for short 'the trial court' hereinafter), whereby the trial court while p ly allowing the application filed by the petitioner under Order 14, Rule 5 read with section 151 CPC has ordered for framing one issue out of five issues proposed by the petitioner.

(2.) Brief facts of the case are that respondent Nos. 1 to 5 have filed a suit for permanent injunction against the petitioner and the Municipal Corporation, Bikaner while claiming that they are residents of Mahant Ji Ka Dera area and are using a lane for their ingress and egress which is about 10-12 feet along with 150 families. It is claimed that the house of the petitioner is existing at the very same place, where the lane connects to the main road. It is alleged that the petitioner has started digging the underground at her house for the purpose of constructing a building for commercial purpose, however, the petitioner has expanded the digging towards the lane beyond her plot size. It is further alleged that the plaintiff and other neighbours have asked the petitioner not to raise construction on the lane, however, the petitioner has refused to stop the construction while claiming that the concerned authorities have granted her permission to raise construction. The plaintiffs have prayed that by way of permanent injunction, the petitioner be restrained from raising construction beyond her plot size. The petitioner has also prayed that the respondent - Municipal Corporation, Bikaner may also be restrained by issuing the injunction that they would enquire into the construction raised by the petitioner and if the same is found against the Rules or that the construction has been raised by the petitioner beyond her pattasud land, then the same may be removed.

(3.) In response to the plaint, written statements were filed by the petitioner and on the basis of which the trial court has framed 3 issues. The issue No. 1 is to the effect that whether the petitioner is raising construction exceeding the measurement of her pattasud land and dug the underground without any permission. The onus of proving of the Issue No. 1 was placed on the respondent-plaintiffs. Issue No. 2 is to the effect that the suit filed by the petitioner was based on probabilities and, therefore, is liable to be dismissed. The onus of proving the Issue No. 2 was placed on the petitioner-defendant. Issue No. 3 is in respect of reliefs.