The court upheld the temporary injunction, emphasizing the plaintiffs' rights to construct on their land, contrary to the petitioner's claims of reserved passage.

1. Petitioner has filed the present petition being aggrieved by the order dated 28.09.2018 passed by Ist Civil Judge, Class - I, Ratlam whereby the relief of temporary injunction has been granted to the respondents / plaintiffs and order dated 07.12.2018 whereby the District Judge, Ratlam has dismissed the miscellaneous appeal filed under O.43, R.1 of the CPC.
Facts of the case in short are as under:

2. Respondent Nos.1 and 2 purchased the agricultural land bearing survey No.1136/3/1, area 0.220 hectares of Gram Shivgargh, Tahsil Sailana, district Ratlam vide registered sale deed dated 10.08.2015 from the present petitioner. After execution of the said sale deed, the respondent Nos.1 and 2 were put in possession. On 08.02.2018 the respondent Nos.1 and 2 filed a suit for declaration and permanent injunction by submitting that after purchase of the aforesaid land they got diverted it and started the construction of the school building. The present petitioner who is defendant No.1 in the suit initiated the proceeding under S.131 of the MPLR Code before the Tahsildar on 07.11.2017 and vide order dated 08.01.2018 the Nayab Tahsildar has dismissed the proceeding. Being aggrieved by the aforesaid order, the present petitioner preferred an appeal before the SDO which gave a cause of action to them to file the present suit. According to the plaintiffs, the petitioner / defendant is objecting for construction over 15 ft. wide area of the land situated on the east side of the land in question According to the defendant, though the said land was sold to the plaintiffs but the right has been reserved to use the same as common passage, therefore, the plaintiffs have no right to raise any construction over the said area. The present petitioner appeared in the suit and filed the written statement.

3. Plaintiffs filed an application under O.39, R.1 and R.2, CPC seeking temporary injunction that the defendant be restrained from interfering into the peaceful possession and construction of the school building over the entire survey No.1136/3/1. The aforesaid application was replied by the petitioner and vide order dated 28.09.2018 learned Civil Judge has found prima facie case, balance of convenience and irreparable loss in favour of the plaintiffs and restrained the present petitioner from interfering into the construction work. Being aggrieved by the aforesaid order, petitioner preferred miscellaneous appeal and the same has been dismissed by the District Judge vide order dated 07.12.2018, hence the present petition before this Court.

4. Shri A.K.Sethi, learned Senior Counsel appearing for the petitioner submits that in the sale deed it has specifically been mentioned that 15 ft. wide land situated on east side from north to south shall be available for common passage in future by the seller and purchaser both, therefore, the plaintiffs have no right to raise any construction over the said area. The Nayab Tahsildar has wrongly dismissed the application filed under S.131 of the MPLR Code which has been set aside by the SDO vide order dated 04.06.2018 and despite that both the Courts below have wrongly granted the relief of temporary injunction to the plaintiffs. If the plaintiffs are permitted to raise construction over the said land then during the pendency of the suit they will complete the construction and that would amount to change of nature of the suit property, hence the plaintiffs be restrained from carrying out the construction.

5. Shri Katkani, learned counsel appearing for the respondents / plaintiffs submits that after the aforesaid purchase, the plaintiffs got diverted the land for commercial purpose and constructed the school building, therefore, it is no more agricultural land