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2015 DIGILAW 905 (RAJ)

Shaeda Modi v. Mohd. Afzal

2015-04-22

ARUN BHANSALI

body2015
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioners defendants aggrieved against the orders dated 10.4.2013 passed by the Civil Judge (Jr.Div.), Jodhpur Metro granting temporary injunction restraining the petitioners from raising any construction towards Eastern side of the house and rejecting the counter temporary injunction application of the petitioners and order dated 24.5.2013 passed by the Additional District Judge No.5, Jodhpur Metro, whereby the appeal preferred by the petitioners against the order dated 10.4.2013 has been rejected. 2. The respondents No.1 to 6 filed a suit for permanent and mandatory injunction inter-alia indicating that the defendants after purchasing the property in Hanif Babuji Ki Gali obtained construction permission from the Municipal Corporation, Jodhpur and got the map approved; the permission was granted towards Southern side of the house to the extent of 13.54ft. East-West, which is the rear side of the plot. However, the defendants were opening windows and doors in the said lane and has encroached upon 2ft. land of the lane. It was prayed that the defendants be restrained from trespassing over the land and not to interfere in the rights of the plaintiffs regarding ingress and egress in the lane. 3. Along with the suit, an application seeking temporary injunction was filed seeking restrain against the defendants from raising construction or trespassing over the lane and for removal of the construction over the trespassed portion. 4. The petitioners filed written statement and a counter claim inter-alia submitting that the lane in question is 6ft. wide and the petitioners had raised construction according to the permission granted by the Municipal Corporation; it was claimed that the corrigendum of sale deed has been executed and registered and the construction is in accordance with the dimension mentioned in the sale deed read with the corrigendum; 6ft. wide street was very much in existence and the construction was being raised on the property forming subject matter of the sale deed. The petitioners also sought counter temporary injunction alleging that the plaintiffs have trespassed over the lane in question resulting in the lane getting shrunk by 3-4ft. and they have constructed 'chabutri' in the lane and have constructed a toilet and bath-room which are liable to be demolished along with 'chabutri'. 5. The petitioners also sought counter temporary injunction alleging that the plaintiffs have trespassed over the lane in question resulting in the lane getting shrunk by 3-4ft. and they have constructed 'chabutri' in the lane and have constructed a toilet and bath-room which are liable to be demolished along with 'chabutri'. 5. The trial court, after hearing the arguments on the application seeking temporary injunction by its order dated 10.4.2013 partly accepted the application on coming to the conclusion that the disputed lane on the Northern side was 9ft. Wide and on Southern side, it has been reduced to 6.2ft. as per the Commissioner Report and the plaintiffs have made allegations regarding the said portion only. The corrigendum has been executed after the institution of the suit and permission has not been sought and therefore, the plaintiffs have succeeded in establishing a prima facie case. 6. Regarding mandatory injunction it was found that without evidence the said aspect cannot be decided. On the counter temporary injunction application also, the trial court came to the conclusion that without evidence said aspect also cannot be decided. Based on its finding regarding prima facie case, the trial court granted temporary injunction regarding not raising of construction towards Eastern side of the house and rejected the counter temporary injunction prayer. 7. Feeling aggrieved, the petitioners filed appeal under Order 43, Rule 1 (r) CPC. 8. Learned appellate court after hearing the parties came to the conclusion that the powers of the appellate court were limited, the petitioners did not produce the chain documents regarding suit property and in the documents shown to the appellate court, the size of the lane was not indicated. The Commissioner Report indicates lane at 9ft. wide on the one end and 6ft. on other end, and from the photographs, it appears that the construction was taking place in the lane. The petitioners had given undertaking that till the permission was not granted by the Municipal Corporation, the petitioners shall not raise construction and the amended permission has not been granted. The corrigendum executed does not appear to be natural and if the construction is permitted, the same would result in difficulties while using the lane and consequently dismissed the appeal. 9. In the present writ petition, notices were ordered to be issued to the respondents by order dated 6.5.2014. Despite service, no one appeared for the plaintiff and Mr. The corrigendum executed does not appear to be natural and if the construction is permitted, the same would result in difficulties while using the lane and consequently dismissed the appeal. 9. In the present writ petition, notices were ordered to be issued to the respondents by order dated 6.5.2014. Despite service, no one appeared for the plaintiff and Mr. Rajesh Choudhary appeared for the Municipal Corporation. Where after, by order dated 8.12.2014, fresh notices were ordered to be issued for final disposal to the plaintiffs, despite service, when the plaintiffs again did not appear, the matter was fixed for final disposal. Where after, the record of both the courts were summoned and matter was finally heard. 10. It is submitted by learned counsel for the petitioners that the courts below have passed the orders impugned without properly appreciating the material available on record and ignoring the law on the subject; the plaintiffs themselves have encroached upon the lane by constructing balcony projecting over the lane and constructing toilet and bath-room thereon; the sale deed and the corrigendum were not questioned by the plaintiffs, the Municipal Corporation had not even filed its reply/written statement, in absence whereof the injunction could not have been granted; the amended construction permission having not been refused, the permission is deemed to have been granted by the Municipal Corporation. It was further submitted that the trial court could have directed the petitioners to furnish undertaking to the fact that if ultimately, the suit was decreed, the petitioners would remove the portion which may be held to be in excess to the sale deed/corrigendum but construction could not have been stopped. 11. The counter injunction application also could not have been rejected by the courts below. It was prayed that the orders passed by the trial court deserves to be set aside and in any case, the same deserves to be modified putting the petitioners' to conditions. 12. Learned counsel for the respondent Municipal Corporation submitted that the writ petition may be decided based on the material available on record. 13. I have considered the submissions made by learned counsel for the petitioners and have perused the material available on record along with the records of both the courts below. 14. From perusal of the suit filed by the plaintiffs, it is apparent that the plaintiffs have not raised any objection regarding the title etc. 13. I have considered the submissions made by learned counsel for the petitioners and have perused the material available on record along with the records of both the courts below. 14. From perusal of the suit filed by the plaintiffs, it is apparent that the plaintiffs have not raised any objection regarding the title etc. of the defendants. The dispute raised pertains to the construction being undertaken by the defendants and the entire plea has been raised based on the sale deed dated 11.3.2008 executed by Mahaveer Chand Bhandari in favour of petitioner Smt. Shaeda indicating particular dimensions regarding the area of the plot and the constructed area. The sale deed indicated 6ft. lane on the Eastern side. It appears that when the petitioners started raising construction and when the present suit was filed raising objections based on the dimensions indicated in the sale deed, the petitioners approached the vandor and the dimensions of the suit property were varied by execution of a corrigendum dated 14.12.2012. 15. While the petitioners are relying on the corrigendum for the purpose of sustaining the construction being raised by them, the plaintiffs are questioning the validity of the corrigendum and are relying on the original sale deed. The appellate court on perusal of the chain documents though did not comment on the dimensions of the plot in question, however, observed that the said documents did not throw light on the width of the lane. The Courts below were apparently much impressed by the fact that the lane on the opening was 9ft. wide and at the end of the plot was reduced to 6.2ft. 16. While determining the dimensions of the plot, the plaintiffs and the court below have accepted dimensions indicated in the sale deed, however, the width of lane indicated in the sale deed has not been accepted either by the plaintiffs or by the courts below. A document has to be considered in its entirety and the parties/court cannot choose the dimensions and/or the width of the lane as per their choice/convenience either the sale deed was to be accepted as a whole or was to be rejected as a whole by the courts below. 17. Further the courts below apparently did not consider the area within which the property was situated and was much impressed with the fact that the lane at the opening was 9ft. Wide. 17. Further the courts below apparently did not consider the area within which the property was situated and was much impressed with the fact that the lane at the opening was 9ft. Wide. It is interesting to note that the plaintiffs also did not indicate the exact width of the lane and simply indicated that the defendants were seeking to trespass on 2ft. of the lane. The photographs which were taken by the Commissioner which forms part of the record of the trial court clearly indicate that the setting and the area in which the property is situated is apparently interior part of old city wherein the lanes and by lanes are not geometrically exact so as to have lanes and by lanes having similar width throughout. The photographs produced indicates construction having been raised on the ground floor of the property and the lane with its 6.2ft. width was apparently in a working condition with two wheeler vehicles moving around. 18. The courts below have also chosen to ignore the execution of the corrigendum only on account of the fact that the same was executed during the pendency of the proceedings. The mere fact that the document was executed during the pendency of the proceedings can by itself cannot be ignored as the document has been executed by a third party i.e. the predecessor in title of the petitioners. 19. In the overall facts and circumstances of the case, wherein besides the aspects considered here-in-before the application dated 26.6.2012 filed by the petitioners seeking construction permission has so far not been refused by the Municipal Corporation in view of the provisions of Section 194(7) of the Rajasthan Municipalities Act, 2009, the fact that the respondents have chosen not to appear before this Court despite service of notice of the present writ petition twice on them and wherein the petitioners have also made allegations by way of counter temporary injunction application against the plaintiffs, it cannot be said that the courts below were justified in restraining the petitioners from raising construction on the Eastern side as grant of injunction of such a nature essentially has resulted in depriving the petitioners from using any part of the property looking to the nature of construction which is being raised as is apparent from the Commissioner's report and the photographs attached with it. 20. 20. So far as the plea raised by the petitioners regarding grant of counter temporary injunction is concerned, the grant of such a injunction at the interim stage in mandatory form was rightly refused by both the courts below and the same does not call for any interference. 21. Consequently, the writ petition is partly allowed. The orders dated 10.4.2013 and 24.5.2013 passed by the trial court and the appellate court to the extent of grant of injunction against the petitioners are set aside. The petitioners may raise construction on filing an undertaking before the trial court that in case, the suit filed by the plaintiffs is decreed by the trial court, the petitioners shall remove the construction raised by them in terms of the directions issued by the trial court and that they would neither seek any compensation nor would seek any equity from the courts on account of having raised the construction and/or having invested funds for raising the construction. 22. The undertaking may be filed within a period of one week, where after, the petitioners may undertake the construction. No order as to costs. Petition partly allowed.