1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.3002/07 Kranti Kumar Kotia vs. Smt. Kaushal Kishore Kotia & Anr. Date of order : 11/2/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.K. Jain for the petitioner. Shri B.B. Mathur for the respondent. ****** Heard learned counsel for the parties. The writ petition has been filed against the order dated 11.9.2006 passed by the Court of Additional Civil Judge, Jaipur Division, whereby the injunction order against the petitioner has been required to maintain status quo with regard to the disputed property and the order dated 22.2.2007, whereby learned Additional District Judge No.2 upheld the aforesaid injunction order while rejecting the appeal of the petitioner. Learned counsel for the petitioner has argued that the land in dispute was purchased by him from his two sisters namely Jairani Jain and Raj Prabha Jain to whom subject property was bequeathed by their father. Learned trial court as well as 2 appellate court have wrongly granted injunction order of status quo. All that defendant-petitioner wants is to raise the height of existing boundary wall of 1.5 feet to 5 feet and fix the front gate. It is argued that without the boundary wall and the gate, defendant-petitioner is being forced to leave in unsafe conditions and if prayer made is allowed, this is not going to cause any irreparable loss and injury to the plaintiff-respondent. Learned counsel for the respondent opposed the writ petition and argued that in view of clause 22 of Municipal Council Jaipur (Building) Bye-laws, 1970 the defendant petitioner was required to leave 6 meters in front and 3 meters in rear and sides as the setbacks. Before raising construction, however, only a small area of 5 feet is left and if the construction sought to be raised is allowed, this would completely block the air and light to the house of the plaintiff-respondent defeating their easementry rights. It is contended that the court below have by concurrent finding found the prima facie case of the 3 plaintiff proved inasmuch as the balance of convenience has also been found in favour of the plaintiff. It is further argued that the issues with regard to the easementry rights is a mixed question of law and fact and so long as this question is not finally determined, the defendant-petitioner cannot be permitted to raise construction. Having heard the learned counsel for the petitioner and perused the material forming part of the record and the photographs which are annexed as Annexure-5, I find that while boundary on the side adjacent to the house of the plaintiff appears to have been raised by only upto plinth level, the front gate has not been affixed at all. It would however be not justified to allow the petitioner to raise a pucca boundary wall upto the height of 5 feet. But at the same time affixing gate in front would not in any manner adversely affect the rights of the respondent. It is therefore directed that the petitioner may be permitted to affix the front gate, but he shall be required to be maintained the status quo with regard to the side adjoining the house of the plaintiff- 4 petitioner. However, in order to have a temporary safety, the defendant—petitioner may erect a structure of bamboo, in place of wall, upto the height of 5 feet as an interim measure till the disposal of the suit. This arrangement would however be subject to final outcome of the main suit. The writ petition is accordingly disposed of. (MOHAMMAD RAFIQ), J. RS/