IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/APPEAL FROM ORDER NO. 224 of 2018 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2018 In R/APPEAL FROM ORDER NO. 224 of 2018 ==========================================================

AMRUTADEVI KRISHNAKANT PATEL Versus GORELAL KASHINATH SINGH ==========================================================

Appearance:

BHARATKUMAR A DESAI(8513) for the Appellant(s) No. 1 MR NISHITH P THAKKAR(2836) for the Respondent(s) No. 1,2,3 MS ASHA D TIWARI(2983) for the Respondent(s) No. 1,2,3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Date : 04/05/2023

ORAL ORDER

1. This is an Appeal From Order challenging the order dated 14/08/2018 passed by the learned Judge, City Civil Court No.22, Ahmedabad in Civil Suit No. 611 of 2018 by which the application Ex.7 for interim injunction preferred by the appellant herein – original plaintiff came to be rejected.

2. FACTS :

2.1. The case of the appellant – original plaintiff are that the appellant herein – original plaintiff filed Civil Suit No.611 of 2018 in the court of learned City Civil Court, Ahmedabad for removing encroachment of the respondents herein – original defendants from the road of the chal and thereby sought permanent injunction and declaration and the defendants to remove the construction done by the respondents on the road.

2.2. That the original plaintiff and defendants are residing in the same vicinity to each other. The property being House No.167, situated at Azadnagar Chal, Amraiwadi, Ahmedabad is being owned and possessed by the appellant. The respondent has the house across the Chal road. The road is used for the residents of the chal. the road between the appellant and the respondents house is 10 feet. The houses in the Azadnagar Chal are 10 X 15 feet and 12 X 18 feet area. The respondent herein started construction and rebuilt his house. The respondent started the construction on the Chal road which is only for the use of the Chal and the respondents started the constructing the toilet and the stairs and encroach almost 2.5 feet of the Chal road. The appellant herein lives across the road and this encroachment of the respondents caused problems to the appellant and the residents of the Chal. The plaintiff had sought for injunction against the defendants not to construct on the chal road by way of the Civil Suit No.611 of

2018.

2.3. That the Written Statement had been submitted by the defendant at Exh.18, inter alia stating that the defendants had started the construction only for the purpose of renovation and repair as the house of the respondent is old. And the respondents in their reply stated that in the respondents are not constructing or encroaching on the chal road. The respondents stated that their house needed the repairing and renovation so only for the purpose of repair he is doing the construction.

2.4. That the plaintiff had also filed counter affidavit stating that the court commissioner had submitted his report where as per the court commissioner report the respondents have rebuilding the entire house. The court commissioner report also mentions that the road between the appellant and the respondent is 8 feet and 8 inches. And the house of the respondents are 11 feet 8 inches* 14 feet 8 inches.

2.5. That the court commissioner had been appointed at the instance of present petitioner who had found that the respondents are rebuilding the house and the area of the respondent house is 11 feet 8 inches* 14 feet 8 inches instead of 10X15 feet.

2.6. That the original plaintiff had relied documents like tax bill, photographs of the encroachment and the application to the Municipal Corporation to remove the encroachment by the respondents and other relevant documents to show that the respondents had encroached on the chal road and constructed house without any permission of the Corporation. However, the learned Judge had been pleased to reject the interim application for injunction. He