USHA DEVI Vs. SUBHASH SAINI

JUDGEMENT

(1.) The petitioner-defendant (hereafter 'the defendants') are aggrieved of the order dated 29-11-2017 passed by the appellate court i.e. the District Judge Jhunjhunu in civil miscellaneous appeal No.47/2017 at the instance of the respondents-plaintiffs (hereafter 'the plaintiff') setting aside the order dated 20-11-2017 passed by Civil Judge Jhunjhunu passed on application under Order 39 Rules 1&2 CPC and restraining the defendants from raising construction in any part of a lane of 18 feet width east of the defendant's plot/ house.

(2.) Counsel for the defendants submitted that the finding of the first appellate court is perverse and without regard to the well considered findings of the trial court where it was held that there was no material of probative worth on record at the plaintiff's instance to establish that the lane in dispute east of the defendant's plot/ house was 18 ft. wide. Counsel submitted that the Commissioner's report furnished before the trial court indicated that the lane in issue had a varying width from 16'2" to 17'9". It was further submitted that in the site plan of the plot allotted to defendants by the Nagar Palika Mandawa, no lane as alleged obtained at all to the east in which direction "others land" was shown. It was submitted that in this view of the matter there was no material as noted by the trial court to make out any case for interim injunction against the defendant, yet the appellate court has set aside the trial court's order dated 20- 11-2017 and injuncted the defendant, which injunction entails denial of rights under a valid patta issued by the Nagar Palika Mandawa.

(3.) Heard. Considered.