JUDGMENT :

Pushpendra Singh Bhati, J.

1. This writ petition under Article 227 of the Constitution of India has been preferred claiming the following relief’s:

"(i) The impugned order dated 15.11.2018 (AnnEx. 14) to the extent of directing stay of Civil Suit No. 178/2018 pending before the court of Civil Judge, Nathdwara may kindly be quashed and set aside with all consequential order.

(ii) Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioner.

(iii) Costs of the writ petition may kindly be awarded to the petitioner."

2. Brief facts of this case, as noticed by this Court, are that the predecessor in title of the petitioners, Late Shri Shyam Sunder Upadhyay had purchased shops No. 15, 16, 17 & 18 from the then Goswami Tilkayat Ji by a registered sale deed dated 15.03.1971. By another registered sale deed dated 24.09.1977, Shri Shyam Sunder Upadhyay purchased the roof of five shops admeasuring 1323 sq. feet from Nathdwara Temple Board. Subsequently, Late Shri Shyam Sunder Upadhyay had purchased the roof of four shops, which were purchased vide sale deed dated 15.03.1971 and roof of the fifth shop which was belonging to Shri Arvind Kumar Bhatt.

3. Against the registered sale deed 24.09.1977 regarding purchase of the roof of the fifth shop, a suit for preemption was instituted by Shri Arvind Kumar Bhatt, the owner of the fifth shop, against Late Shri Shyam Sunder Upadhyay and the said suit was registered as Suit No. 213/1978.

4. The aforesaid suit came to be decided by way of compromise between the parties, and the decree of preemption was granted for roof over the shop of Shri Arvind Kumar Bhatt. It was also agreed that between the shop of Shri Arvind Kumar Bhatt and Late Shri Shyam Sunder Upadhyay, there was a common area which was 2 feet 6 inches wide, and each of the parties shall be free to use 1 foot 3 inches thereof for making their own construction.

5. Shri Arvind Kumar Bhatt executed a registered sale deed dated 28.10.2016 in favour of the respondent-Smt. Swati Bhatia with respect to the plot measuring 370 sq. ft. as the shop in question became a plot due to dilapidation.

6. The respondents obtained construction permission from the Municipal Board, Nathdwara and started construction on the site in question.

7. The petitioners filed a suit on 04.05.2017 claiming right of preemption before the Court of learned Additional District Judge, Nathdwara being Civil Suit No. 08/2017 against the present respondents.

8. In the temporary injunction proceedings of Civil Suit No. 08/2017, an interim injunction was granted in favour of the plaintiff/petitioners-Lalit Upadhyay & Ors. on 08.05.2017, and thereafter, on 14.02.2018, temporary injunction was granted in favour of the plaintiffs/petitioners. However on appeal being preferred by respondent/defendant-Smt. Swati Bhatia before this Hon'ble Court being S.B. Civil Misc. Appeal No. 955/2018, the said temporary injunction order was set aside vide order dated 06.09.2018, while remanding the matter back to the learned trial court for decision afresh.

9. After remand, the learned trial court has again granted temporary injunction in favour of the plaintiffs/petitioners on 16.10.2018. Being aggrieved by the said order dated 16.10.2018, the respondent/defendant-Smt. Swati Bhatia preferred S.B. Civil Misc. Appeal No. 2963/2018 before this Hon'ble Court, whereupon vide order dated 30.10.2018, the order of temporary injunction was stayed by this Hon'ble Court, which resulted into respondent No. 2 raising construction at war footing.

10. At this juncture on getting the properties measured, the petitioners came to know that their property was being encroached upon by the respondent-defendant to the extent of 2 feet, as they claimed from the sale deed dated 15.03.1971.

11. Thereafter, the petitioners filed another civil suit before the Court of learned Civil Judge, Nathdwara seeking