- (1.) R. R. Yadav, J. The instant writ petition is directed against the order and judgment dated 29-8-2000 Annexure-1 to the writ petition, passed by 1st Additional District Judge, Etah whereby the order and judgment dated 18-2- 1999 passed by the 'learned trial Court granting temporary injunction in favour of the petitioners under Order XXXIX Rules 1 and 2 CPC has been set aside and appeal filed under Order XLIII, Rule 1 (r) CPC was allowed.
(2.) THE factual matrix of the case necessary to be noticed for disposal of the present writ petition are that suit No. 576 of 1998 was filed by plaintiff petitioners and one Smt. Har Pyari Devi (who died during the pendency of Misc. Appeal), against the contesting respondents in the Court of Civil Judge (Junior Division) Kasganj, Etah, as the contesting respondent- defendant 1st set threatened to demolish the walls AD, DF and EF which is shown is red ink in the plaint, belonging to the petitioners and defendants IInd set and in their possession to make a passage through it and also threatened to open door and window in these walls. THE aforesaid suit was filed on the basis of registered sale-deed dated 24-3-1933 executed in favour of their grand father. Ayodhya Prasad and his brother Shiv Dayal seeking relief of permanent injunction against defendant 1st set who is impleaded as respondent No. 3 in the present petition. On the same date of filing of suit an application supported with affidavit for grant of temporary injunction under Order XXXIX, Rules 1 and 2 CPC was also moved. THE learned trial Court granted interim injunction on the date of filing of suit. The plaintiff-petitioners also applied for appointment of an Advocate Commissioner for serving the interim injunction and for preparation of spot map, which was allowed on the date of interim injunction. The learned Advocate Commissioner served the injunction order and prepared the map and submitted report. Annexure-6 to the writ petition. The Advocate Commissioner during his inspection found some portion of the wall, which was part of the house of the plaintiffs petitioners damaged and fresh foundation for raising new constructions and pillars was also found on the spot. The defendant 1st set filed counter affidavit before the trial Court stating therein that his predecessors in interest had purchased adjoining part of building on 7-2-1929 and on the basis of which the walls in question are under his ownership as these walls are part of his latrine. It is further averred in the counter affidavit that Eastern and Western in dispute are not part of sale-deed dated 24-3-1933. A true copy of the counter affidavit filed by defendant 1st set before the trial Court is filed and marked as Annexure 7 to the writ petition.
(3.) THE plaintiff-petitioners filed their rejoinder affidavit before the trial Court wherein it is clearly averred the predecessors in interest of plaintiff petitioners constructed wall AD, DF and EF on their side lying within the boundary shown in sale deed dated 24-3-1933 whereas the wall of latrine was demolished by predecessors in interest of defendants 1st set. THEy averred that the height of this wall is 14'2" which can never be height of latrine roof. THE Eastern and Western walls shown in the sale-deed dated 7-2-1929 were constructed of "kakaiya bricks" of ancient time whereas the disputed walls were constructed after family settlement by late Sri Mathura Prasad with "gumma bricks" of recent origin, a copy whereof is filed and marked as Annexure 8 to the writ petition. After hearing the learned Counsel for both sides and considering material available on record, the learned Civil Judge (Junior Division) confirmed the interim injunction and disputed of the application (6- Ga) by order dated 18-2-1999 a copy whereof is filed and marked as Annexure 9 to the writ petition.;