IMPORTANT POINT
The court emphasized the need to maintain equitable balance between the parties and found that the installation of railings by the defendants violated the previous court order, leading to interference with the impugned order to maintain equitable balance.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, petitioners have assailed order dated 28.9.2022, passed by the learned Civil Judge, Court No.3, Ghumarwin, District Bilaspur in CMA No. 587-6/2022 in Civil Suit No. 27-1/2022.

2. Brief background of the case is that the petitioners and respondents herein are defendants and plaintiffs respectively in Civil Suit No. 27-1/2022, pending before the learned Civil Judge, Ghumarwin. For the sake of convenience, the parties hereinafter shall be referred to by the same status as they hold in the main suit.

3. Plaintiffs have sought a decree of declaration to the effect that they are entitled to get their half share partitioned from the defendants in the suit land, which in totality measures 13 bighas situated in Village Panyala, Tehsil Ghumarwin, District Bilaspur (hereinafter referred to as ‘the suit land’). In addition, a decree of permanent prohibitory injunction has also been prayed for by restraining the defendants from raising construction of any kind over any part of the suit land and particularly from installing gate over the road which leads from the house of the plaintiffs to the main road through courtyard of defendants. In alternative, decree for mandatory injunction has been prayed for, seeking directions against the defendants to remove the obstruction or gate if installed on the aforesaid road.

4. The suit has been filed on the premise that the suit land is joint between the plaintiffs at one hand and defendant No.1 on the other. Plaintiffs claim half share in the suit land. It is averred that another civil suit came to be contested between the parties at an earlier occasion, which was compromised by way of written compromise dated 13.7.2019 executed between the parties and exhibited as PX on record of the said suit.

5. Plaintiffs claimed to have constructed a road to their house on the suit land which connects the house to the main road. It is also the case of the plaintiffs that the said road was constructed by the plaintiffs with the consent of defendants and it was thereafter that the compromise dated 13.7.2019 was executed in the earlier suit. As per plaintiffs on 17.12.2021, the defendants obstructed the right of user of road of the plaintiffs through suit land and threatened to construct a gate in such a manner so as to deny the plaintiffs their right to ply vehicles up to their house.

6. Defendants have filed written statement and have asserted their position on a specific portion of the suit land. Their case is that the path available to the house of plaintiffs is unobstructed and passes from one side of the courtyard of the house of the defendants. The plaintiffs have no right to claim passage/road through the courtyard of the house of the defendants. As per the defendants, the part of suit land which was in their possession abutted the public road and since boundary of suit land towards public road was unattended, it was frequently subjected to tress pass by the public at large and for such purpose, they required the protection to their property by installation of a gate for protection from intrusion of wild animals was also pleaded by defendants.

7. Alongwith the suit, the plaintiffs also filed an application under Order 39 Rules 1 and 2 CPC for interim relief, which was registered as CMA No. 69-6/2022. Learned trial Court decided the said application alongwith another application filed under Order 39 Rule 4 of the Code by defendants, vide a common order dated 5.8.2022 in the following terms:

“In view of the aforesaid discussion and considering the fact that the suit land is jointly owned by the parties, the application is only partly allowed to the extent that the respondents may install a gate to protect their property but with a condition not to obstruct in any way the access to the house of the applicants. Regarding the remainder of the suit land, the parties are directed to maintain status quo qua nature, possession and construction. It is further clarified