MANGILAL Vs. ICHKU DEVI

JUDGEMENT

(1.) This is defendant-petitioner's revision petition filed against the order dated 4-8-1995 passed by the learned Civil Judge (Junior Division), Sojat in Civil Misc. Case No. 70/95.

(2.) The dispute between the parties is with regard to a 4-5 ft. wide land existing between their houses. The case of the non-petitioners-plaintiffs is that the above land is meant for discharge of rain water. The plaintiff also uses his gate "X" for going into his nohra for the purpose of keeping his cattle, fodder etc. The gate "X" is situated towards the north of the lane. The plaintiff alleged that the defendant wanted to usurp the land and in order to achieve the above object, has created the disturbances. He has erected a thorn fence and also collected stones and made a kachha wall in order to obstruct the above gate of the plaintiff. Along with the suit, the plaintiff-non-petitioners also filed an application under Order 39, Rules 1 and 2 C.P.C. Notice of the application was issued to defendant-petitioner. The trial Court also appointed a Commissioner to inspect the site and submit a report. The Court passed an order on 21-12-1994 for maintaining the status quo. The plaintiffs moved an application on 21-2-1994 under Order 39, Rule 2-A read with Section 151, C.P.C. in which a complaint was made tht the defendant-petitioner has disobeyed the order passed by the Court on 21-2-1994 for maintaining the status quo. It was alleged by the plaintiff that after passing of the order dated 21-12-1994, the defendant-petitioner has erected a thorn fence and also a temporary wall of stones and obstructed the gate through which the plaintiffs used to enter into his nohra. On 2-8-1995, the plaintiffs also moved an application under Section 151, C.P.C. praying for the removal of the above obstruction. In other words, the plaintiffs prayed for injunction in the mandatory form. The plaintiffs prayed that the above obstruction be removed with the help of the police. The defendant-petitioner was given notice. The defendant denied to have created any obstruction as alleged by the plaintiffs. It was further stated by the defendant-petitioner that the plaintiffs never used the nohra gate inasmuch as the plaintiffs has got a separate gate of his use. The thorn fence was erected by the plaintiffs himself. The Court again appointed a Commissioner who inspected the site and submitted his report on 26-2-1995. In the report, the Commissioner has stated that he tried to give notice to the defendant-petitioner but the latter refused to receive the same. The Commissioner has stated in the report that near the gate "X", a temporary wall or chabutra has been erected with stones and at place "Z", in-front-of the gate of the plaintiff, a thorn fence was also found. According to the report of the Commissioner, the gate "X" of the nohra of the plaintiff has been obstructed. After considering the report of the Commissioner and taking stock of the whole situation, the Court felt persuaded to allow the application of the plaintiff and made an order to the Assistant Nazir to remove the above obstructions with the help of the police. In compliance of the above order, the Assistant Nazir, with the help of the police, removed the obstructions and submitted his report dated 7-8-1995. According to the report submitted by the Assistant Nazir, he found a kachha chabutra on the land as also the thorn fence. He removed the above obstructions with the help of the police.

(3.) I have heard learned counsel for the petitioner and the learned counsel for the non-petitioners.