- (1.) The petitioner-plaintiff has filed the present petition under Art. 226/227 of the Constitution of India, challenging the order dated 23.7.2012, passed by the Additional District Judge,Sawai Madhopur(hereinafter referred to as "the appellate court"), in Civil Appeal No. 21/2012, whereby the appellate court has modified the order dated 5.6.2012, passed by the Civil Judge(JD) Sawai Madhopur, (hereinafter referred to as the "trial court")in T.I.Application No. 66/2012.
(2.) It appears that the petitioner-plaintiff has filed the suit seeking permanent injunction in respect of the property marked as 'GHDF' in the map annexed to the plaint. The petitioner-plaintiff had also filed an application for temporary injunction for restraining the respondent Nos.2 to 4-defendants, from putting up any construction on the property marked as 'ABCD' in the said map and also for restraining the defendants from raising construction on or demolishing the property marked as 'GHDF' in the said map during the pendency of the suit. The trial court vide order dated 5.6.2012, restrained the respondents-defendants from putting up any construction on or demolishing the property marked as 'ABCD' in the map annexed to the plaint and further directed to maintain status-quo as per the Commissioner's Report dated 23.5.2012, during the pendency of the suit. Being aggrieved by the said order, the respondents-defendants had preferred the appeal being no. 21/2012 before the appellate court, which by the impugned order dated 23.7.2012, partly allowed the said appeal by confirming the injunction granted by the trial court only to the extent of the property in dispute marked as 'GHDF' in the map and set-aside the rest of the order passed by the trial court. Being aggrieved by the said order, the petitioner has invoked Art. 226 of the Constitution of India by way of present application.
(3.) It has been sought to be submitted by learned counsel Mr. Amir Aziz for the petitioner that the appellate court has committed an error in modifying the order passed by the trial court which was just and proper. According to him, though in the plaint the petitioner- plaintiff had sought injunction in respect of the property marked as 'GHDF' in the map annexed to the plaint, the respondents-defendants had raised the dispute with regard to the entire property 'ABCD' as shown in the map and, therefore, the petitioner-plaintiff had sought temporary injunction in respect of the entire property 'ABCD' as marked in the said map. According to him the appellate court should not have interfered with the order passed by the trial court which is just and proper. However, the learned counsel Mr. Raj Kamal Gaur, for the respondents-defendants, supporting the order passed by the appellate court, submitted that the appellate court has rightly modified the order passed by the trial court by restraining the respondents-defendants only for that portion of the property which was the subject matter of the suit.;