Hemraj Saini vs Smt Nangi

By this writ petition a challenge is made to the order dated 23rd August, 2016 passed by the District Judge, Tonk, Rajasthan so as the order dated 27th May, 2014 passed by the Civil Judge (Junior Division), Tonk.

The plaintiff-respondent preferred a suit for injunction against the defendant-petitioner, who was raising construction. It was alleged that on 21 feet way, which gives access to the plaintiff, the defendant is raising construction, thus it may be restrained. The Court below passed an injunction order and the same has been confirmed by the Appellate Court.

Learned counsel submits that 21 feet wide passage shown by the plaintiff-respondent is on the land belonging to the petitioner, as he is Khatedar of the agricultural field. He has yet left 14 feet wide passage, as was existing. The Court below yet restrained the construction of the house without there being any evidence to show that earlier the passage was 21 feet wide. Accordingly, the order passed by the Courts below may be set aside and otherwise, the petitioner would be raising construction at his risk and subject to outcome of the suit.

Learned counsel for the respondent has contested the writ petition. It is submitted that there exists 21 feet wide passage, which give access to the petitioner to his house and agricultural field, thus the Courts below have rightly passed the order of status quo. The suit for partition between the parties is also pending. Taking into consideration the aforesaid, the interference in the order of the Courts below may not be made. It is moreso when, the defendant's father made a statement in other case that his son has encroached upon the land.

I have considered rival submissions made by learned counsel for the parties and perused the record.

The orders in a temporary injunction, granted by the trial Court and in the appeal, having been dismissed, are under challenge in this writ petition. The passage of 21 feet has been claimed by the plaintiff. It is out of the agricultural land and otherwise, the issue aforesaid would be determined in the suit. Presently, the petitioner has kept 14 feet wide strip for passage and otherwise, agreed to remove the constructions, if ultimately, the suit is decreed, thus, if any construction is raised, it would be at his risk. In view of the above and as the plaintiff has failed to prove his prima faice case in regard to 21 feet wide passage, the order passed by the Courts below are interfered and set aside with the modification that while raising construction by the petitioner, he would leave 14 feet wide strip and, at the same time, the construction would be subject to final outcome of the suit. If it is decreed in favour of the plaintiff-respondent then the defendant- petitioner would remove the construction to keep 21 feet wide passage. Thus, any construction raised by the petitioner during pendency of the suit would be at his risk.

The writ petition is allowed with the aforesaid.