SHRILAL & ORS. Vs. DURGALAL & ORS.

JUDGEMENT

(1.) This civil writ petition has been filed by the petitioners being aggrieved with the order dated 30.1.2016 passed by the Additional District Judge, Shahpura, District Bhilwara (hereinafter referred to as 'the Appellate Court') in Appeal No. 7/2015, whereby the Appellate Court has allowed the appeal preferred on behalf of the respondents and directed the petitioners to remove the obstructions created by them in the disputed way within 15 days and also restrained them from creating any obstruction for the respondents in using the said way.

(2.) Brief facts of the case are that the respondents filed a civil suit in the Court of Civil Judge, Shahpura, District Bhilwara (hereinafter referred to as 'the Trial Court’) for declaration and permanent injunction along with an application under Order 39 Rules 1 and 2 C.P.C. with a prayer for mandatory temporary injunction while stating that their Khatedari land measuring about 4.83 hectare is falling in Khata No. 177 of village Phooliya Khurd Tehsil Shahpura District Bhilwara and for approaching to the said Khatedari land the respondents are using a way situated between the agriculture fields of petitioners since more than 100 years. It is stated that there is no other way available to the respondents for approaching their Khatedari land and in the year 2013 they created the said way by putting gravel sand on it, however, the petitioner Nos. 1 and 2 have obstructed the said way by digging ditch in between Araji Nos. 2363 and 2362 and by putting some thorns. The respondents prayed for mandatory temporary injunction for removing the obstructions and opening the way and also prayed that the petitioners be directed not to interfere in the use of said way.

(3.) The petitioners have filed reply to the application preferred on behalf of the respondents under Order 39 Rules 1 and 2 C.P.C. and denied the claim of the respondents while stating that there exists no way in the revenue record and the respondents are forcefully trying to make a way by putting gravel sand which was excavated from their pond. The petitioners have also stated that a revenue suit filed by them against the respondents is pending before the Sub Divisional Magistrate, Shahpura, District Bhilwara (hereinafter referred to as 'the Revenue Court') in respect of the dispute regarding the way. Ultimately, it was prayed that no case for grant of mandatory temporary injunction is made out and, therefore, the application be rejected.