- (1.) PLAINTIFF is in revision under Article 227 of the Constitution praying for setting aside the order dated 30.10.2013(P -4) passed by the learned Civil Judge(Jr. Divn.), Gurgaon whereby the application of the petitioner under Order 39 Rules 1 & 2 CPC seeking temporary injunction and to restrain the defendants from raising construction in the suit land is dismissed; and further challenge is to the order dated 14.11.2013 (P -5) passed by the learned Additional District Judge, Gurgaon whereby miscellaneous appeal filed by the plaintiff against the order dated 30.10.2013 P -4 has also been dismissed.
(2.) PLAINTIFF has filed a suit for partition by meets and bounds and for injunction seeking to restrain the defendants from raising any construction during the pendency of the suit. It is averred that the plaintiff/petitioner is co -owner in possession of half share of the Gair Mumkin Land measuring 1 Kanal 16 marlas, fully described in the plaint. It is further averred that the defendant nos.1 to 3 are co -owners in possession to the extent of 1/6th share portion each. Plaintiffs state that they have raised construction i.e. House around 10 years back in the joint land whereas the defendants have also constructed their residential house around many years ago. Now the defendants are threatening to raise construction in excess of their shares in the vacant portion of the aforesaid joint land. The stand of the defendant nos.1 to 3 is that no new construction is being raised in any vacant area and the same is being raised by demolishing the old construction. Both the parties have annexed their site plans.
(3.) LEARNED Trial Court on the application under Order 39 Rules 1 and 2 CPC, keeping in view the respective stands and the report of the Local Commissioner appointed by the Court in para 11 observed as under: - " Now coming to the fact of the present case it has been alleged by the plaintiff that the said land has not been got partitioned and that defendant is raising construction on larger portion that that which false in his shares. He has further averred that the said area on which construction is being raised was lying vacant from before and there was no construction per existing on the said land shown in blue colour. But averments of the plaintiff do not seen, to have force in the light of the report of local commission appointed by the court. LC had submitted report in his that construction was going on and it appeared that the same was being done after demolishing some old construction. Thus plaintiff has not specifically proved as how a prima facie case lies in his favour when defendants seems to have raising construction after demolishing some old one." Learned Trial Court further proceeded to observe that since the plaintiff himself has constructed his house in the land in his possession around 10 years back it will be most inequitable if the defendants are restrained from raising construction after demolishing the old construction in the same land and thus proceeded to dismiss the injunction application. The reasoning was further confirmed by the appellate Court.;