Arun Bhansali, J.

This writ petition has been filed by the petitioners defendants aggrieved against the orders dated 10.4.2013 passed by the Civil Judge (Jr.Div.), Jodhpur Metro granting temporary injunction restraining the petitioners from raising any construction towards Eastern side of the house and rejecting the counter temporary injunction application of the petitioners and order dated 24.5.2013 passed by the Additional District Judge No.5, Jodhpur Metro, whereby the appeal preferred by the petitioners against the order dated 10.4.2013 has been rejected.

2. The respondents No.1 to 6 filed a suit for permanent and mandatory injunction inter-alia indicating that the defendants after purchasing the property in Hanif Babuji Ki Gali obtained construction permission from the Municipal Corporation, Jodhpur and got the map approved; the permission was granted towards Southern side of the house to the extent of 13.54ft. East-West, which is the rear side of the plot. However, the defendants were opening windows and doors in the said lane and has encroached upon 2ft. land of the lane. It was prayed that the defendants be restrained from trespassing over the land and not to interfere in the rights of the plaintiffs regarding ingress and egress in the lane.

3. Along with the suit, an application seeking temporary injunction was filed seeking restrain against the defendants from raising construction or trespassing over the lane and for removal of the construction over the trespassed portion.

4. The petitioners filed written statement and a counter claim inter-alia submitting that the lane in question is 6ft. wide and the petitioners had raised construction according to the permission granted by the Municipal Corporation; it was claimed that the corrigendum of sale deed has been executed and registered and the construction is in accordance with the dimension mentioned in the sale deed read with the corrigendum; 6ft. wide street was very much in existence and the construction was being raised on the property forming subject matter of the sale deed. The petitioners also sought counter temporary injunction alleging that the plaintiffs have trespassed over the lane in question resulting in the lane getting shrunk by 3-4ft. and they have constructed 'chabutri' in the lane and have constructed a toilet and bath-room which are liable to be demolished along with 'chabutri'.

5. The trial court, after hearing the arguments on the application seeking temporary injunction by its order dated 10.4.2013 partly accepted the application on coming to the conclusion that the disputed lane on the Northern side was 9ft. Wide and on Southern side, it has been reduced to 6.2ft. as per the Commissioner Report and the plaintiffs have made allegations regarding the said portion only. The corrigendum has been executed after the institution of the suit and permission has not been sought and therefore, the plaintiffs have succeeded in establishing a prima facie case.

6. Regarding mandatory injunction it was found that without evidence the said aspect cannot be decided. On the counter temporary injunction application also, the trial court came to the conclusion that without evidence said aspect also cannot be decided. Based on its finding regarding prima facie case, the trial court granted temporary injunction regarding not raising of construction towards Eastern side of the house and rejected the counter temporary injunction prayer.

7. Feeling aggrieved, the petitioners filed appeal under Order 43, Rule 1 (r) CPC.

8. Learned appellate court after hearing the parties came to the conclusion that the powers of the appellate court were limited, the petitioners did not produce the chain documents regarding suit property and in the documents shown to the appellate court, the size of the lane was not indicated. The Commissioner Report indicates lane at 9ft. wide on the one end and 6ft. on other end, and from the photographs, it appears that the construction was taking p