Dismissed

Prakash Chandra v. Savitri Devi

Rajasthan HC15 Jul 2019CW/7373/2019

Case brief

AI extract

What is this about?

Three petitioners challenged an appellate Court order that set aside a trial Court injunction regarding construction on a common wall. The appellate Court found no evidence of a window, only an almirah. The High Court dismissed the writ petition, finding no interference warranted as the trial Court had itself been unsure about the nature of the opening.

What did the court decide?

The writ petition was dismissed and the stay application was disposed of.

Prakash Chandra Vs Savitri Devi — Property and Title | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. Civil Writ Petition No. 7373/2019

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Prakash Chandra S/o Anandraj @ Andaram, Aged About 58 Years, By Caste Tathara Kansara Resident Of Tathara Ki Gali, Katla Bazar, Jodhpur.

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Lekhraj S/o Anandraj @ Andaram, Aged About 53 Years, By Caste Tathara Kansara Resident Of Tathara Ki Gali, Katla Bazar, Jodhpur.

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Satyanarayan S/o Anandraj @ Andaram, Aged About 50 Years, By Caste Tathara Kansara Resident Of Tathara Ki Gali, Katla Bazar, Jodhpur.

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----Petitioners

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Versus

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Savitri Devi W/o Late Sohanlal, By Caste Kansaran Resident Of Tatharo Ki Gali, Katla Bazar, Jodhpur.

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Bhanwarlal S/o Late Sohanlal, By Caste Kansaran Resident Of Tatharo Ki Gali, Katla Bazar, Jodhpur.

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Sanjay S/o Late Sohanlal, By Caste Kansara Resident Of Tatharo Ki Gali, Katla Bazar, Jodhpur.

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Hemlata D/o Late Sohanlal, By Caste Kansara Resident Of Tatharo Ki Gali, Katla Bazar, Jodhpur.

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----Respondents

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For Petitioner(s) : Mr. MK Trivedi For Respondent(s) : Mr. Vinay Shrivastava

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JUSTICE DINESH MEHTA

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Judgment

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15/07/2019

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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

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(2 of 4)

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[CW-7373/2019]

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appeal filed by the defendants (respondents nos.1 to 4 herein) against the order dated 15.9.2016 has been allowed.

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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.

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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.

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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).

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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.

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Mr. Trivedi, learned counsel for the petitioner laying challenge to the order dated 4.5.2019, submitted that there exists

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(3 of 4)

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[CW-7373/2019]

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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.

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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.

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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.

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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).

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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

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(4 of 4)

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[CW-7373/2019]

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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.

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The writ petition is, therefore, dismissed. The stay application also stands disposed of accordingly.

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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.

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(DINESH MEHTA),J

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26-CPGoyal/-

Prakash Chandra v. Savitri Devi

Case brief

What is this about?

What did the court decide?

Prakash Chandra v. Savitri Devi

Case brief

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Statutes considered

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