Shishpal And Ors vs Mange Ram

This writ petition has been filed by the petitioners aggrieved against orders dated 16.12.2019 passed by Civil Judge, Bhadra (Hanumangarh) on an

application filed by respondent under Order XXXIX, Rule 1 and 2 CPC and order dated 20.01.2020 passed by Additional District Judge, Bhadra,

whereby, the appeals filed by the petitioners have been rejected.

A suit for permanent injunction was filed by the petitioners in relation to a wall ad measuring 46x8 ft. situated on back of his residential plot and for

restraining the defendant from creating a way.

The respondent filed application under Order XXXIX, Rule 1 and 2 CPC seeking mandatory injunction against the plaintiffs for removing the wall, by

which, the lane (Gali) has been blocked and for removal of the goods lying on the way.

The application was contested by the petitioners and the trial court by its impugned order dated 16.12.2019 came to the conclusion that there was

prima facie case in favour of the applicant-defendant based on the Commissioner report. The trial court further came to the conclusion that apparently

there appears to be a blockage created temporarily on the way. Whereafter the issues pertaining to balance of convenience and irreparable injury

were also found in favour of the applicant-defendant and by way of mandatory injunction, the order was passed for opening of the lane.

Feeling aggrieved, the petitioners filed two appeals.

Both the appeals came to be rejected by the appellate court on its coming to the conclusion again based on the Commissioner reports and the

photographs that the lane has been illegally blocked by the petitioners and, consequently, the appeals were rejected.

It is submitted by learned counsel for the petitioners that the two courts below were not justified in granting the injunction/dismissing the appeals filed

by the petitioners, inasmuch as, the lane in question was part of petitioners’ property and that a bare look at the photographs, which were part of

the Commissioner report indicates that the findings recorded based on the Commissioner report and pictures was factually incorrect and, therefore, the

orders impugned deserve to be quashed and set aside.

I have considered the submissions made by learned counsel for the petitioners and have perused the material available on record.

A bare look at the findings recorded by the two courts below reveals that both have reached to a concurrent finding pertaining to availability of prima

facie case in favour of the applicant.

The appellate court recorded a categorical finding that disputed area was part of the lane and the same has been blocked and consequently passed the

orders, as noticed hereinbefore. The plea raised regarding the jurisdiction of the Court, in granting mandatory injunction, was also negated.

By order dated 07.02.2020 counsel for the petitioners was directed to produce the photographs, which have formed the basis for two courts to come

to a conclusion regarding lane having been blocked by the petitioners and, pursuant thereto, the Commissioner report and pictures have been produced

for perusal of the Court.

A bare look at the said pictures alongwith Commissioner report does not leave any manner of doubt that both the courts have reached to a correct

conclusion pertaining to the lane having been blocked by the petitioners.

So far as the emphasis laid on a pipe situated at the one end of the lane is concerned, the said pipe is beyond the lane, whereas, the blockage has been

created at the beginning of the lane and, therefore, the plea sought to be raised in this regard also apparently has no basis.

Learned counsel for the petitioners failed to indicate any perversity in the findings recorded by the two courts below so as to require interference in

the concurrent orders passed by both the courts below.

In view of the above, no case for interference is made out.

The writ petition filed by the petitioners is dismissed.

However, it goes without saying that any observations made by the two courts below as well as this Court are confined to the disposal of the

application under Order XXXIX, Rule 1 and 2 CPC and the trial court would be free to decide the pending suit based on the evidence which comes on

record before it, uninfluenced by the findings previously recorded.