SH. SATYANARAYAN. Vs. SUNDERLAL S/O RUGHNATH

JUDGEMENT

(1.) This appeal under Order 43, Rule 1 (u) CPC has been filed by the appellants-defendants aggrieved against the judgment dated 15/5/2017 passed by the Addl. District Judge No.4, Bikaner, whereby, the first appeal filed by the respondent no.1-plaintiff has been allowed, the judgment and decree dated 29/11/2012 passed by Addl. Civil Judge (Jr.Div.) No.2, Bikaner has been set aside and matter has been remanded back to the said court for rehearing and for passing fresh judgment.

(2.) A suit for injunction was filed by the respondent no.1 against the appellants inter alia with the averments that the parties were brothers and that defendant threatened to take possession of the property which was in possession of the plaintiff and as the said threatening gave the cause of action, on 9/3/1989, a suit was filed along with an application for temporary injunction, which application was decided in favour of plaintiff, where after, the suit was dismissed for non-prosecution. It was alleged that on 10/10/1991, the defendant again without permission for construction started digging for laying foundation in the land belonging to the plaintiff, which gave cause of action for which a suit was filed and during the pendency of the suit, it was alleged that a gate has been put on 26/1/1997 and, therefore, the plaint was amended and besides the reliefs sought for not taking permission and demolishing wall, not raising construction and not interfering in possession of the plaintiff, mandatory injunction was sought that the gate be removed.

(3.) Defendant filed written statement disputing the claim of the plaintiff and relied on the dismissal of the suit filed earlier.