SANTOSH BOOBNA Vs. RAMAVTAR KANDOI AND OTHERS

JUDGEMENT

(1.) Under challenge by the petitioner-defendant (hereafter 'the defendant') is the order dated 11-9-2017 passed by the District Judge Jhunjhunu (hereafter 'the Appellate court') in Civil Miscellaneous Appeal No.34/2017, upsetting and setting aside the order dated 20-5-2017 passed by Senior Civil Judge Nawalgarh, Jhunjhunu (hereafter 'the trial court') in case No.51/2013, dismissing the application under Order 39 Rules 1 & 2 CPC for temporary injunction filed by respondents-plaintiffs (hereafter 'the plaintiffs') and instead restraining the defendant from raising any construction for the purpose of commercial use in the west side of the suit property i.e. haveli of Boobna as also from opening any access from the shop constructed to a common "chowk". The facts of the case are that the plaintiff filed a civil suit for mandatory, permanent injunction and cancellation of sale-deed dated 11-5-2011-where the petitioner-defendant (hereafter 'the defendant') was the vendee-to the extent of land measuring 10.6 X 25 (hereafter 'suit land') and for cancellation of the permission granted therefor by the local competent authority to raise commercial construction thereon. Also sought as a necessary corollary was cancellation of the conversion order changing the land use of the suit land from residential to commercial. Along with the suit an application for temporary injunction under Order 39 Rules 1 & 2 CPC was also filed. The case of the plaintiff was that there were four pre-existing buildings (haveli) with a common "chowk" for residential use only-the defendant was owner of one. The "chowk" adjacent to each constituted private property for use only of the residents of the four "havelis". It was stated that the defendant, admittedly the owner of one of the four havelis made commercial constructions including of a shop opening in the common "chowk". The public at large was to be allowed user of the chowk negating limited user thereof by the residents of the four "havelis". It was stated that the defendant had for the purpose of commercial construction wrongly and illegally obtained permission from the Municipality Nawalgarh and had similarly been allowed commercial use. Restrain on the construction for commercial use and encroachment of the common "chowk" permitting imminent public use of private property was sought.

(2.) On service of summons, the defendant filed a written statement of denial as also a similar reply to the application under Order 39 Rules 1 & 2 CPC. It was stated that no purported common chowk between the four havelis ever existed. What was claimed, wrongly, as a "chowk" for the alleged exclusive user of residents of the four havelis was two public roads criss crossing. The two roads by for long had been used by the public at large without any restriction. One of the stated four havelis was in a dilapidated condition. The defendant as the lawful registered owner thereof sought its conversion from residential to commercial on making payment of requisite charges, and also sought approval of construction plans as per extant building bye-laws. Constructions were thereafter strictly in accordance with approved plans. No legal rights of the plaintiffs was contravened therefrom. The allegation of encroachment of the alleged common chowk was denied as being baldly false. It was stated that on no count a lawful use of property by the defendant as underway could be restrained.

(3.) The Nawalgarh Municipality supported the defendant's case in its written statement. Existence of a private chowk was denied and it was stated that public ways 10' feet wide criss crossing the four havelis existed and were being so used. It was stated that building permission for commercial purpose was granted as per extant byelaws. The plaintiffs by false allegations of wrong doing was trying it brows beat it and in fact had even filed a false case for the purpose. It was submitted that the father of plaintiff No.2 had himself sought and has been grated building permission on the chowk outside his haveli, but within private ownership of the haveli owner and no part of oublic land or road was granted to the defendant and this fact having been suppressed it sufficed for the plaintiff's case being dismissed. It was stated that the Municipality act as statutorily mandated against encroachments.