Baldev Singh and Another vs Saroj Devi

Sanjay Karol, J.—In this petition, filed under Article 227 of the Constitution of India, plaintiffs-petitioners (hereinafter referred to as the plaintiffs) have assailed order dated 17.4.2013, passed by Additional District Judge, Una, in Civil Misc. Appeal No. 18 of 2012, titled as Baldev Singh and another versus Saroj Devi, affirming the order dated 8.11.2012, passed by Civil Judge (Junior Division), Court No. 1, Amb, District Una, in C.M.A. No. 120-VI/12 in CS No. 82-1/12, titled as Baldev Singh and another versus Saroj Devi, in petitioner''s application filed under the provisions of Order 39 Rules 1 & 2 of the Code of Civil Procedure. Having heard learned counsel for the petitioner, I am of the considered view that no ground for interference is made out at all. There is neither any illegality/perversity nor any error apparent on the face of record, resulting into travesty of justice.

Plaintiffs claim right of passage through Khasra No. 298. This right is claimed by way of easement. When defendant (respondent herein) allegedly obstructed free access of passage, plaintiffs filed suit for declaration that they are the rightful users over the passage and as such defendant be restrained from obstructing the same and also raise construction thereupon.

Alongwith the suit, plaintiffs also filed an application under the provisions of Order 39 Rules 1 & 2 of the CPC for grant of interim injunction. The present proceedings pertain to the same.

Defendants opposed the application, inter alia, on the ground that plaintiffs have an alternate approach to their land and Abadi through Khasra No. 300/1 from the link road.

While partly dismissing the plaintiffs'' application, the Courts below considered various submissions as also material placed on record by the parties. Plaintiffs'' application stands decided by the trial Court in terms of the following order:

Thus, in view of above reasoning, I hold that the applicants are not entitled for any relief of temporary mandatory injunction as well temporary injunction from raising construction over khasra no. 298. However, the applicants are held entitled for temporary injunction qua Kh. No. 301 and the respondent or her staff members or servants are restraining from blocking the discharge of water and from raising any construction of wall over khasra no. 301 during the pendency of the suit. Application accordingly stands disposed of a partly allowed in the aforesaid manner. It is clarified that the finding in the present application shall bear no impact upon the merits of the main case. Be tagged with the man case file.

This order stands affirmed by the lower appellate Court.

It is seen that the Courts below concurrently held that plaintiffs have not been able to prima facie establish their rights over Khasra No. 298, necessitating passing of order of interim injunction in their favour.

Noticeably, trial Court had appointed a Local Commissioner, who, in the presence of the parties, visited the spot and in his report, observed that Khasra No. 300/1, which abuts Khasra No. 301, is connected with a link road. Boundary wall already existed over Khasra No. 298. In this view of the matter no interference is warranted at all. Plaintiffs have access to his land.

Mr. Goverdhan, learned counsel for the plaintiffs-petitioners invited my attention to the affidavits of villagers to establish right of plaintiffs over Khasra No. 298. This piece of evidence is to be considered by the trial Court at the time of deciding the main suit, after affording opportunity to cross-examine the defendants. Hence, in my considered view, there is no illegality or perversity in the orders passed by the Courts below, warranting interference by this Court. Petition is dismissed.

Petition stands disposed of, so also the pending application(s), if any.