- (1.) THE petitioner -defendants are aggrieved by order dated 17.3.2011 passed by Civil Judge (Jr. Div.), Gangapur City, whereby the learned Magistrate has partly allowed the temporary injunction application filed by the respondent -plaintiffs. The petitioner -defendants are further aggrieved by the order dated 4.1.2014 passed by Additional District Judge, Gangapur City, whereby the learned Judge has dismissed the appeal filed by the petitioner, and has upheld the order dated 17.3.2011.
(2.) THE brief facts of the case are that the respondent -plaintiffs filed a suit for permanent and mandatory injunction against the petitioner - defendants, wherein they had claimed that their father had constructed a two storey house about fifty -eight years back. On the eastern side of the said house there is a wall which overlooks plot owned by the petitioner - defendants. In the said wall on the ground floor there is a window with a chhajja and on the first floor there are two roshandan with chhajja. Till 2011 the petitioner -defendants were living in a patorposh and did not raise any construction in their plot which lies on the eastern direction of the house owned by the respondent -plaintiffs. But on 9.3.2011 they demolished their patorposh and started construction. In case the construction of the petitioner -defendants were permitted, it would close the window on the ground floor and the two roshandan at the first floor. Therefore, the respondent -plaintiffs requested the petitioner -defendants to leave a gallery of three feet between the two houses so that the respondent -plaintiffs' right to light and air would not be eliminated. Since the petitioner -defendants refused to comply with the request made by the respondent -plaintiffs, the respondent -plaintiffs had no option but to file a suit for permanent and mandatory injunction along with an application for temporary injunction. The petitioner -defendants filed their written -statement and claimed that the window on the ground floor and two roshandan at the first floor were recently constructed by the respondent -plaintiffs. Moreover, the construction being carried out by the petitioner -defendants was in accordance with the plans approved by the Nagar Palika, Gangapur City. Therefore, the petitioner -defendants had also filed their counter -claim against the respondent -plaintiffs. After hearing both the parties, by order dated 17.3.2011 the learned Magistrate partly allowed the application for temporary injunction, and directed the petitioner not to raise any construction above the window level on the eastern wall of the respondent -plaintiffs' house, but permitted the respondent -plaintiffs to carry out the construction upto the level where their patorposh existed. Since the petitioner -defendants were aggrieved by the order dated 17.3.2011, they filed an appeal before the learned Judge. However, by order dated 4.1.2014 the learned Judge dismissed the appeal and upheld the order dated 17.3.2011. Hence, the present petition before this Court.
(3.) MR . Achintaya Kaushik, the learned cunsel for the petitioners, has vehemently contended that the respondent -plaintiffs have not come with clean hands before the learned Trial Court. Although they claimed that the window and the roshandans are as old as the house itself i.e. fifty - eight years' old, the fact remains that the window and the roshandans were opened on the eastern wall only recently, while the petitioners were away. Secondly, the petitioners are constructing their house strictly in accordance with the plan approved by the Nagar Palika, Gangapur City. Therefore, there is nothing illegal about the construction being raised by them. Thirdly, the petitioners have also filed their counter -claim for injuncting the respondent -plaintiffs from disturbing the construction being raised by the petitioners. Fourthly, the Commissioner's report also proves the fact that the window and the roshandans were newly constructed. Therefore, according to the learned counsel neither the learned Magistrate, nor the learned Judge are justified in prohibiting the petitioners from raising the construction beyond the level of the window. Hence, the impugned orders deserve to be interfered with. ;