POONAMCHAND Vs. RAMKISHAN

JUDGEMENT

(1.) Ramkishan non-petitioner had instituted Civil Original Suit No. 27 of 1985 in the Court of Munsif Bikaner on Jan. 14, 1985 for permanent Injunction against the petitioner. It was alleged in the plaint by Ramkishan non-petitioner that he was nephew of the petitioner Poonamcharid. Their residential houses were situated in village Gadiala. These houses were constructed by the common ancestor of die parties named Ramnarain. Adjoining the 'Barsaties' of the houses of the plaintiff and the defendant, there was a Bakhal (open place like court yard) measuring about 30 feet or 32 feet wide and 40 feet or 45 feet long. Both the parties were in possession of 1/2 share of the Bakhal parallel to the alignment of their respective houses. There was a main gate of this Bakhal through which the parties entered in order to reach their respective houses through the Bakhal. They also tied their cattle in the Bakhal. It was alleged that petitioner Poonam Chand was raising a wall in front of the main gate of the house of the plaintiff and thus wanted to close the gate. He was also proposing to make constructions which would block the plaintiffs passage through the Bakhal to his house and also the gate of his house. In this suit the plaintiff prayed for a decree of permanent injunction restraining the defendant from raising any wall in the plaintiff's share of the Bakhal and from in any way obstructing the plaintiffs access through the Bakhal to his gate of the house and from dispossessing the plaintiff from his share of the Bakhal. Along with the suit plaintiff Ramkishan filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure wherein he prayed for a temporary injunction against the defendant that defendant-petitioner be restrained from in any way occupying the Bakhal in possession of the plaintiff by raising any wall and from creating any obstruction which may result in ejectment of the plaintiff and obstruction in his having access to his house. On this application, tire Additional Munsif Bikaner issued an order to the effect that status quo be maintained till the next date. Notice of this order was served on the petitioner. On Jan. 18, 1985, plaintiff filed an application under Order 39 Rule 2(a) complaining disobedience by the defendant of the status quo order which was registered as Civil Miscellaneous Petition No. 5 of 1985. The temporary injunction order was. confirmed by the Additional Munsif on Feb. 16, 1985. The plaintiff filed one more application for temporary injunction in mandatory form for dismentaling the constructions which had been made by the plaintiff affecting his rights. The plaintiff further moved an application on Feb. 21, 1985 under Order 39, Rule 2(a) of the Code of Civil Procedure regarding disobedience and that application was registered as Miscellaneous Application No. 6 of 1985. After recording evidence of the parties, the Additional Munsif came to the conclusion that the defendant had constructed a room and a gallary after the status quo order was served on him. He also came to the conclusion that the window and the ventilator of the house of the plaintiff opening towards Bakhal had been closed by the construction. It was thus held that the defendant had disobeyed the temporary injunction order which had been issued against him on Jan. 16, 1985 directing him to maintain status quo. For this disobedience the Additional Munsif ordered on June 1, 1985 that the defendant be detained in Civil prison for 2 months. Simultaneously on the application for temporary injunction in mandatory form, the Additional Munsif ordered that the entire balcony and the room and gallary to the extent of 6 feet in width may be dismantled by the defendant within 6 days at his expenses and in default thereof the same may be dismantled through agency of the court. The defendant filed appeal No. 36 of 1985 in the Court of the District Judge against the order of the Additional Munsif No. 1 Bikaner dated June 1, 1985. This appeal was decided by the Additional District Judge, Bikaner on Jan. 8, 1987. The Additional District Judge agreed with the finding of the Additional Munsif Bikaner and dismissed the appeal filed by the defendant. The defendant filed S.B. Civil Revision Petition No. 60 of 1987 against the order of the Additional District Judge. This revision was dismissed by me on Feb. 3, 1987. While dismissing the revision, following observations were made:

(2.) It appears that on Aug. 29, 1987 and Sept. 16, 1987 Madangopal and Lalchand, sons of the defendant, filed applications under Order 1, Rule 10 of the Code of Civil Procedure before the Munsif Lunkaransar (Camp Bikaner) stating therein that the disputed Bakhal was their pattashud land and neither the plaintiff nor the defendant had any title to it. They prayed that they may be impleaded as parties in the suit filed by Ramkishan. In the suit photostat copy of the sale-deed dated July 15 1987 was also produced in order to show that Poonamchand defendant-petitioner had sold his house to his sons Madangopal and Lalchand. The application under Order 1, Rule 10 of the Code of Civil Procedure was dismissed by the Munsif on May 28,1988.

(3.) It then appears that on May 24, 1988 Poonamchand defendant filed an application before the Trial Court that he does not want to file any written statement to the plaint and the plaintiffs suit may be decreed under Order 8, Rule 10 of the Civil Procedure Code. The Munsif took notice of the temporary injunction in mandatory form which had been passed by him on Jan. 1, 1985. Since the defendant did not choose to file the written statement, the plaintiff's suit for permanent injunction was decreed and it was further decreed that the order passed under Order 39, Rule 2(a) will form part of the decree. It was not disputed before me that Poonamchand has filed an appeal against this decree in so far as the Munsif has directed that the order passed by him under Order 39, Rule 2(a) will form part of the decree. In other words, an appeal has been filed by Poonamchand defendant against that part of the decree whereby demolition of the balcony, room and gallery to the extent of 6' wide had been ordered. It may be mentioned that on Nov. 10, 1987 Poonamchand made an application under Order 39, Rule 2(a) read with Sec. 151 of the Code of Civil Procedure before the Munsif reciting the order passed by the Additional Munsif Bikaner on June, 1985 ordering his detention in civil prison for 2 months for the disobedience of the temporary injunction order, the dismissal of his appeal by the District Judge and his revision by this court and Special Leave to appeal petition by the Supreme Court. He stated that he was an old man of 60 years and tendered an unqualified apology for disobedience of the temporary injunction order. He also mentioned that fed up with the dispute relating to the property in question, he has sold the property. He prayed that the order passed for his detention in civil jail for 2 months may be set aside. This application was dismissed by the Munsif on 10th Nov., 1987. It is against this order that the present revision petition has been filed.