Rajasthan High Court - Jodhpur
Prakash Chandra vs Savitri Devi on 15 July, 2019
Equivalent citations: AIRONLINE 2019 RAJ 1254
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 7373/2019
1. Prakash Chandra S/o Anandraj @ Andaram, Aged About 58 Years, By Caste Tathara Kansara Resident Of Tathara Ki Gali, Katla Bazar, Jodhpur.
2. Lekhraj S/o Anandraj @ Andaram, Aged About 53 Years, By Caste Tathara Kansara Resident Of Tathara Ki Gali, Katla Bazar, Jodhpur.
3. Satyanarayan S/o Anandraj @ Andaram, Aged About 50 Years, By Caste Tathara Kansara Resident Of Tathara Ki Gali, Katla Bazar, Jodhpur.
----Petitioners Versus
1. Savitri Devi W/o Late Sohanlal, By Caste Kansaran Resident Of Tatharo Ki Gali, Katla Bazar, Jodhpur.
2. Bhanwarlal S/o Late Sohanlal, By Caste Kansaran Resident Of Tatharo Ki Gali, Katla Bazar, Jodhpur.
3. Sanjay S/o Late Sohanlal, By Caste Kansara Resident Of Tatharo Ki Gali, Katla Bazar, Jodhpur.
4. Hemlata D/o Late Sohanlal, By Caste Kansara Resident Of Tatharo Ki Gali, Katla Bazar, Jodhpur.
----Respondents
For Petitioner(s) : Mr. MK Trivedi
For Respondent(s) : Mr. Vinay Shrivastava
JUSTICE DINESH MEHTA
Judgment
15/07/2019
The present writ petition has been preferred by the
petitioners against the order dated 4.5.2019, passed by the learned Addl. District Judge No.4, Jodhpur Metropolitan, Jodhpur (herienafter referred to as the appellate Court), vide which the (Downloaded on 31/08/2019 at 12:36:56 AM) (2 of 4) [CW-7373/2019] appeal filed by the defendants (respondents nos.1 to 4 herein) against the order dated 15.9.2016 has been allowed.
The facts appertain to the present writ petition are that the plaintiffs - petitioners herein filed a suit for injunction for enforcement of their easementary rights, inter alia, with the assertion that on the southern wall, which belongs to the plaintiffs', there exists a window and by way of the impugned construction, the defendants are closing such window.
Alongwith the suit so filed by the petitioners, an application under Order XLIX Rule 1 and 2 Code of Civil Procedure was also filed, which came to be allowed by the learned trial court, vide its order dated 15.9.2016, with the stipulation that the defendants shall not raise any construction of which will lead to closure of the window (Aala) in the southern wall.
The appeal filed by the defendants against the order dated 15.9.2016, passed by the trial Court came to be allowed by the appellate Court, vide its order dated 4.5.2019. While allowing the appeal, the learned appellate Court observed that the window that has been stated to be existing for last 50-60 years by the plaintiffs does not appear to be a window and it is an old Aala (doorless Almirah).
While reversing the finding of the learned trial court, the appellate Court after appraisal of the material, including the photographs, has held that there is no evidence to show that on the disputed wall there exists any window and set aside the order dated 15.9.2016, passed by the learned trial court and permitted the defendants to raise their construction.
Mr. Trivedi, learned counsel for the petitioner laying challenge to the order dated 4.5.2019, submitted that there exists (Downloaded on 31/08/2019 at 12:36:56 AM) (3 of 4) [CW-7373/2019] a window on the southern side of the wall, which wall is owned by the plaintiffs and the defendants, who are constructing the proposed toilet, if allowed to carry on their construction, the same would lead to closure of the window, from which they have been getting air and light.
Learned counsel further contended that if the impugned order dated 4.5.2019 passed by the appellate Court is allowed to sustain, the entire purpose of filing the suit would be defeated. While arguing that the appellate Court has limited jurisdiction and discretion and re-appreciation of the evidence, in an appeal filed against an order under Order XLIX Rule 1 and 2 Code of Civil Procedure should not normally be resorted to by the appellate Court.
Mr. Srivastava, learned counsel for the respondent per contra submitted that there was no evidence worth the name, to evince that there exists a window on the southern wall. He contended that as a matter of fact an Aala in the common wall is present towards the defendants' side of the property.
Learned counsel further argued that the appellate Court has arrived at correct finding, after perusal of the material available on record, including construction map and the photographs. While inviting attention of the Court towards photographs, he tried to convince that no window exists on the common wall and what exists is, an Aala (doorless Almirah).
Having heard learned counsel for the parties, and upon perusal of the material available on record, including photographs placed for consideration of the Court, this Court is of the opinion that no interference is warranted in the present case, particularly, in wake of the fact that even while granting injunction to the (Downloaded on 31/08/2019 at 12:36:56 AM) (4 of 4) [CW-7373/2019] plaintiffs, the learned trial court was not sure as to whether there exists a window or an Aala. When the trial Court itself was not sure as to whether there existed an Aala or an open window, it ought not to have injuncted the defendants from raising construction, which was admittedly on a common wall. No interference is warranted, in an otherwise just order.
The writ petition is, therefore, dismissed. The stay application also stands disposed of accordingly.
Needless to mention that any observations made by this Court shall not come in the way of the learned trial court, while finally deciding the suit.
(DINESH MEHTA),J 26-CPGoyal/-
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