- (1.) R. B. Mehrotra, J. The present First Appeal from Order has been filed by the defendant-appellant against the order of 1st Additional District Judge, Ghaziabad, dated 6th of May, 1995 granting an ad interim injunction in favour of the plaintiff-respondents under Order XXXIX, Rule 1, CPC and directing the defendant-appellant not to make constructions over the plot in dispute and not to interfere in any manner in the use of the plot in dispute by the plaintiffs and other residents of Sector 37 of NOIDA for using as a Park.
(2.) THE First Appeal From Order was heard by us on 19th of May, 1995. We have already directed while reserving orders in the present First Appeal from Order that the suit itself should be decided within six months, from the Sessions beginning from July 1995 and in case the suit is not decided within the stipulated period, the trial court will seek extension of time from this Court by giving proper explanation for not deciding the suit within the time fixed by the Court. Brief facts for decision of this First Appeal from Order are that plaintiff-respondents No. 2 to 6 have filed Original Suit No. 204 of 1995 with the allegation that the plaintiffs are residents of Sector 37 of NOIDA, Ghazia bad, Sector 37 along with Sectors 28 and 29 have been reserved to be allotted to Army personnel only. A Master Plan for NOIDA area was prepared and sanctioned by the NOIDA (New Okhla Industrial Development Authority) in the year 1985 and certain area shown as red and marked A. B. C. D. in the site plan has been earmarked as green space and nursery school. The further allegation in the plaint were that the said space under the Master Plan was developed as a Park by the NOIDA and the plaintiffs and their dependants and others have been using the aforesaid area as Park since 1986. Swings etc. , have been installed in the Park and they are source of entertainment of the children of the plaintiffs. It was further alleged that defendant No. 1 i. e. , NOIDA defying the aforesaid Master Plan has approved and allotted 500 sq. metre of land out the said area to defendant No. 2 for construction of a Nursing Home. The defendants have started cutting trees and plants of the area and are destroying environment and ecology of the area. With these allegations, the reliefs claimed were that the allotment made over plot No. F-l of Sector 37, NOIDA, Ghaziabad in favour of defendant No. 2, the present appellant, be declared to be null and void and without authority and defen dants be restrained by way of permanent injunction from causing any kind of encroachment upon the Park in dispute and from changing its location etc. , etc. Noida, which was arrayed as defendant No. 1, filed its written statement contesting the aforesaid suit and inter alia pleaded that "land which has been allotted to the defendant No. 2 was previously kept vacant for Primary School/open land as it is evident from the sanctioned lay out plan/master Plan which was sanctioned on 8th July, 1985. Thereafter it was pleaded in the written statement that since there was no provision for opening a Nursing Home and there was a demand for opening a Nursing Home by the people of the locality, defendant No. 1 has allotted the land to defendant No. 2 for a Nursing Home.
(3.) ON the basis of the aforesaid pleadings and on the basis of the documents brought on the record of the suit, a finding has been recorded in the impugned order that the green belt shown in the Master Plan is different from the plot in dispute. 1000 sq. Yard of the land was reserved for Nursery School out of which 500 sq. Yards have been allotted for Nursing Home to defendant No. 2. It has also been held that |the disputed land is different from the land of Park in the green belt. Thereafter the Addl. Civil Judge noticed the contention of the defendants, that the reserved land was not for public Nursery School but was for private Nursery School and since there was no application for opening a private Nursery School, the land has been allotted for Private Nursing Home. The Addl. Civil Judge has held, that this fact is not borne out from the record of the case, from the record only this much is established that the land was for Nursery School. It is not clear as to whether the land was allotted for public Nursery School or Private Nursery School which will be established by the evidence led by the parties. The Addl. Civil Judge has further held that on the basis of the record of the case, prima facie case has been made out in favour of the plaintiffs and if the defendants are not stopped from constructing the Nursing Home, the plaintiffs will suffer such an irreparable loss which cannot be com pensated.;