G. D. Dube, J. - (1.) THIS appeal has been preferred against the judgment and order of Civil judge Etah allowing an application of the plaintiff-respondent for temporary tnjunction. By this order respondent has been permitted to raise wall in between the pillars at his own costs and the appellant directed to fill in the dtiches dug by him towards east of the pillars within four days of the order failing which the respondent was entitled to get the ditches filled and recover the costs from the appellant.
(2.) IT appears from the impugned order that two suits 255 of 1992, Chandra Prakash Varma v. Noor Mohammad and 283 of 1992, Noor Mohammad v. Chandra Prakash Varma pending before the court below were consolidated. These two suits were in respect of the same property. It was alleged in suit no. 283' of 1992 that the respondent has established a tyre repairing shop in the property in dispute in order to maintain the above shop Brahma Nand Gupta the previous owner had constructed a tin shed. Later on Brahma Nand Gupta was trying to evict the respondent from the site in dispute. He filed a suit before the court of Munsif This was decreed. An appeal ;against this order was also dismissed. The respondent filed second appeal before the High Court In this appeal the operation of the two orders of court below have been stayed. The second appeal is still pending before the High Court. Meanwhile the previous owner Brahma Nand Gupta has transferred the property in dispute along with other properties to the appellant. The appellant moved an application under section 17 of U. P. Act no. 13 of 1972, U. P. Building (Rent, letting and eviction) Regulation Act. The appellant got a release order from Rent Control and Eviction Officer. Thereafter he got possession over the property lying adjacent to the property in dispute. In the night of 6th July, 1992 the respondent demolished the eastern wall of the plaintiff-respondent's tenement. Consequently the property in dispute became unsafe. After demolishing the eastern wall the respondent was raising wall between the pillars on which his tin rests. The appellant filed suit no. 255 of 1992 and got a stay order restraining the respondent from constructing the wall between the pillars. The respondent urged that the appellant had no right to demolish the eastern wall. They had dug ditches at the place of wall. Therefore, they have endangered the very construction of the respondent. On these allegations an application was moved for temporary injunction by the respondent under order 39 rules 1 and 2 of the Code with a prayer that the defendant appellant be directed to reconstruct the wall demolished by them. The application for temporary injunction was contested by the appellant They alleged that demolished wall was not In the tenancy of the respondent. The wall was demolished in the night of 5/6th June, 1992. Thereafter the suit was filed on 20th of July 1992. It was further urged that by demolition of the wall the plaintiff-respondent does not suffer any irreparable loss and therefore, no mandatory injunction can be granted. After hearing both the parties the trial court came to the conclusion that the respondent has got no right to get the wall constructed which was demolished by the appellant. However, the trial court permitted the respondent to raise wall between the pillars so that he may be able to protect his property. This wall was directed to be constructed at the expense of the respondent which he could not claim from the appellant. The appellant was directed to fill the ditches within four days failing which the respondent was entitled to get the ditches filled and recover the costs from the appellant. Aggrieved by this order the present appeal has been filed.
(3.) IN other suit 255 of 1992 also an application had been moved for temporary injunction. IN the common order passed in the two suits the learned trial court has rejected the application for temporary injunction of the appellant. It was alleged that the valuation of the suit was less than one lac, hence appeal has been filed against the said order in the court of District Judge Etah. It was argued by the learned counsel for the appellant that at the inter locutory stage the lower court should not have granted mandatory injunction It was urged that the ditch which was directed to be filled does not fall within the tenancy of the respondent. This wall was not a subject matter of the suit Consequently the lower court could not have granted any relief in respect of these ditches.;