S.D.Agarwala, J. - (1.) This is a petition under Article 226 of the Constitution directed against an order dated 29th May 1979 passed by the 2nd Additional District Judge, Bulandshahr.
(2.) The facts which have given rise to -the present petition are as follows. The .petitioner let out three shops along with ,an open sahan with a right to use the roof as mentioned in the lease deed dated 8th June 1970 to respondent No. 2, Sardar Sewa Singh, for the purpose of carrying on the business of dry-cleaning. Initially there was no construction on the first floor. Respondent No. 2 alleged that there was an oral agreement by virtue of which he agreed that the petitioner may 'construct the first floor and that respondent No. 2 will have a right to use the roof of the first floor for the purposes of his dry-cleaning business. After the construction of the first floor when respondent No. 2 wanted to use the roof of the first floor disputes arose between the parties and then respondent No. 2 filed suit No. 37 of 1979, Sewa Singh v. Gur Bachan Singh , for a relief that the petitioner be injected temporarily not to obstruct in the user of the roof gallery and staircase by respondent No. 2, Sewa Singh and his servants or any other person on his behalf.
(3.) In the above suit an application was made for issue of a temporary injunction. The trial court issued a temporary injunction to the effect that the petitioner was restrained from interfering with the right of respondent No. 2 from using the roof. The petitioner went up in appeal. During the pendency of the appeal before the injunction matter could be finally decided the parties agreed on 3rd April 1979 that respondent No. 2 can use the roof of the first floor by means of approaching through a wooden staircase. In fact it was agreed upon by the petitioner that he will have no objection in case the roof is used through the wooden staircase as that would not affect his privacy. This arrangement continued during the pendency of the appeal. The appeal was, however, finally allowed by the 2nd Additional District Judge, Bulandshahr on 25th April 1979 and the order of temporary injunction issued by the trial court was set aside and the injunction application was dismissed.;