DEVA Vs. GODAR

JUDGEMENT

(1.) THIS is a plaintiff's revision against the order of the learned District Judge, Udaipur dated September 14, 1978 by which he vacated the order of temporary injunction dated August 28, 1978 passed by the learned Munsiff, Kanor and arises out of an application filed by the plaintiffs -petitioners under Order XXXIX Rule 1 read with Section 151, C.P.C.

(2.) THE plaintiffs -petitioners instituted a suit for declaration and permanent injunction against the defendants -non -petitioners in the court of Munsiff, Kanor alleging that they have been using the disputed land marked MN and the entrance marked XY shown in the plan appended to the plaint for going to their fields bearing Khasras Nos. 363 and 361. It was also mentioned that for cultivation and for bringing the harvest and crop by ballock carts, the way marked MN has been continuously used by them and that is the only way for going to the plaintiffs' fields It was prayed in the plaint that the defendants maybe restrained by means of permanent prohibitory injunction from interfering with their right of way as stated by the plaintiffs. The suit was based on acquisition of easement right of way by prescription. The alleged right of way has been claimed through the field bearing khasra No 359 of the defendants Along with the plaint, an application under Order XXXIX Rule 1 and 2 read with Section 151, C.P.C. was submitted on July 21, 1978. praying for issuance of a temporary injunction It appears that on this application, an exparte Older was made On July 25. 1978, the plaintiffs submitted an application that after the issuance of the exparte interlocutory injunction the defendants had raised a sand wall 2'high at the entrance marked XY whereby obstructing the way by which the plaintiffs used to take their bullock cards to their fields. It was, therefore, prayed that mandatory injunction, be issued for the removal of the aforesaid sand wall. This application for the issuance of the interlocutory mandatory injunction was opposed by the defendants stating that the application has been filed by suppressing true facts in as much as on a portion of khasra No. 359, Jawar had been sown and the crop of duration of 20 days has been standing on it. It was also stated that the plaintiffs have another way near the railway crossing between Kanor and Pit pure and it was therefore submitted on their behalf that status quo, as it existed on the date of the suit and subsequent thereto may be allowed to be maintained. In view of the allegations and the counter -allegations in this regard made by the parties, the Commissioner was appointed by the court for site inspection and the Presiding Officer of the court also inspected the site. After arguments, the learned Munsiff found that all the three conditions necessary for the grant of the temporary injunction were satisfied and, therefore, he directed that the sand wall be removed and the defendants should not interfere with the plaintiffs' alleged right of way marked MN through the entrance XY for going to their fields. He gave certain other and lliary directions in this regard Being dissatisfied with the order of the learned Munsiff granting interlocutory injuncrion in mandatory and prohibitory forms, the defendants went in appeal and the learned District Judge, by his order dated September 14, 1978 accepted the appeal and set aside the order of the learned Munsiff dated August 28, 1978 and dismissed the plaintiffs' application under Order XXXIX Rules 1 and 2 read with Section 151, C.P.C.

(3.) I have heard learned Counsel for the petitioners as well as learned Counsel for the non -petitioners and have carefully gore through the order under revision and the material that has been placed by the parties on record in this revision.