- (1.) The present revision petition arises out of the orders passed by the trial Court and the lower appellate Court whereby an application filed under Order 39 Rules 1 and 2 CPC filed by the petitioner was dismissed.
(2.) The learned trial Court after noticing the entire factual position, came to the following conclusion: "It may be observed that a local Commissioner was appointed to report the factual position relating to the well CD with a particular reference to point-X who in his report dated 16-07-2001 has submitted that at point-X, there exists a door, however, the same was closed at the time of inspection. Learned counsel for the defendants has placed on record a copy of the representation dated 14-07-2001, made by the villagers to the Gram Panchayat, Baraula, stating therein that the plaintiff has illegally encroached upon the Gali. The Gram Panchayat passed a resolution dated 24-10- 2001 that plaintiff has illegally encroached upon the Gali and sought police help for the same. Photographs placed on the record by the defendants of the site in dispute reveals the existence of electric pole and existence of the pacca gali therein. Moreover, the plaintiff has also admitted the factum of existence of hand-pump and water supply outlet at the site in dispute. This indicates that plaintiff does not have any right over the property. The plaintiff has concealed these material facts and as such, he is not entitled to the discretion, relief or ad-interim injunction as prayed for. Even otherwise also, applicant-plaintiff in the present application has claimed the relief that defendants/respondents be restrained from installing any door or gate towards his house which as per the report of local commissioner is already in existence. Therefore, application is wholly misconceived and devoid of any merit."
(3.) In appeal, the lower appellate Court also confirmed this finding of the trial Coart and held as under : "Before commenting on the pleadings and legality of other factual positions, this Court would first like to lay emphasis on the photographs of the dispute site annexed with Court file. It is clear from these photographs that there are 3 windows in addition to one door belonging to the respondents which are having their exist towards open Courtyard of the appellant. It falsifies the plea taken by the appellant that respondents are in a move to instal door on the space created by removal of one of the said three windows. Location of door, as visible in the photographs, clearly gave the impression that it is their in existence for a long time and it is in addition to its nearby windows and does not give the impression that its location is created by removal of any window. Other starting features of said snaps is that there is a "Patnala" also which is meant for the drainage of respondents rainy water towards the site of appellants' alleged Courtyard. Appellant cannot ignore these physical objects belonging to respondents which projects a clear picture that respondents are enjoying the open space lying behind their house. The existence of electric pole in said open space adjoining the door and windows belong to respondents also supports the stand of respondents as electric poles are usually installed at public passage to avoid inconvenience to private land.";