Point of Law: If respondents are allowed to put-up construction by the use of the F.S.I. for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. If on the contrary injunction is granted as prayed for.

JUDGMENT :

PRAKASH PADIA, J.

1. Heard learned counsel for the petitioner and Sri. Ali Qambar Zaidi, learned counsel for respondent No. 1.

2. The petitioner has preferred the present petition inter-alia with the prayer to set-aside order dated 09.09.2020 passed by the Additional District Judge, Court No. 11, Muzaffarnagar in Civil Misc. Appeal No. 08 of 2020 (Akhtar Husain vs. Zulfiqar Husain and Others) as well as order dated 12.08.2020 passed by Civil Judge (Junior Division) Muzaffar Nagar in Case No. 556 of 2019 (Zulfiqar and Others vs. Akhtar Husain).

3. Facts in brief as contained in this petition are that Original Suit No. 556 of 2019 was filed by the plaintiff-respondents against the present petitioner for permanent injunction with a prayer to restrain the defendant-petitioner from construction over the common land and a further prayer has also been made to restrain the defendants of the suit to open the door and windows to the side of Masjid and Imambada. An application for grant of interim injunction was also filed by the plaintiff-respondents being Application No. 6C. On the date, the Suit was preferred, the interim injunction was granted in favour of the plaintiff-respondents by the trial Court vide its order dated 01.10.2019.

4. Objections were filed by the petitioners-defendants to the aforesaid interim injunction application. The defendant-petitioner also filed his written statement. Against the ex-parte interim injunction dated 01.10.2019, the defendant-petitioner filed a Misc. Appeal No. 2 of 2020 on 13.11.2019 before the District Judge Muzaffar Nagar. The aforesaid appeal was decided by the District Judge Muzaffar Nagar vide its judgment and order dated 20.02.2020. By the aforesaid order, the Trial Court was directed to reconsider the application for temporary injunction after hearing both the parties. The application for temporary injunction was again allowed by the trial Court after hearing both the parties vide its judgment dated 12.8.2020. Against the aforesaid order, again a Misc. Appeal No. 8 of 2020 was filed before the District Judge Muzaffar Nagar. The aforesaid appeal was dismissed by the District Judge Muzaffar Nagar vide its judgment and order dated 09.09.2020. Hence the present petition.

5. It is argued by learned counsel for the petitioner that Hayat Ali was ancestor of the petitioner and the respondents. Late Hayat Ali had constructed a Mahal in Gram Jujhera District Muzaffar Nagar. It is stated in paragraph 13 of the petition that the petitioner was A.S.I. in Delhi Police and he was living with his family in the Government Quarter alloted by the Department. When he was superannuated from his service, he was directed to vacate the quarter allotted to him by the Government up to 31.12.2020. After his retirement, the petitioner wants to shift his village, in this regard he started construction in his old house. The constructions were raised on the old foundation and no extra land was acquired by him for the purpose of construction. It is further stated that when the constructions were started by the petitioner, the suit in question has been preferred by the plaintiff-respondents on fictitious grounds. It is further argued that the petitioner has not encroached any land so far as ventilator, window and pari are concern. It is further argued that while passing the order dated 12.8.2020 by the Civil Judge concerned, no demarcation was taken place and the interim injunction was granted. It is further argued that the injunction could not be granted without identification of the disputed land.

6. On the other hand, it is argued by counsel for the respondent that till date, there is no family partition whatsoever has been made between the parties in respect of the property in dispute. It is further argued that the present petitioner-defendant in the suit started raising the construction over the common land after encroachment, certain constructions have been made. It is further argued that in case, any of constr