1 S.B.CIVIL MISC. APPEAL NO.1777/2007 Urban Improvement Trust, Sriganganagar v. Ashish Gupta Date of Judgment :: 11th February, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Dron Kaushik, for the appellant. Mr. Vineet Sanadiya, for the respondent. .... By the order impugned dated 17.3.2007, learned District Judge, Sriganganagar accepted an application preferred under Order XXXIX Rule 1 and 2 read with 151 Code of Civil Procedure by issuing a temporary injunction restraining appellant Urban Improvement Trust, Sriganganagar from removing iron fencing from the land measuring 5½ x 70 ft. installed in front of the plaintiff respondent's house and also to maintain status quo with regard to the land in dispute. The factual matrix necessary for adjudication of this appeal is that the respondent plaintiff preferred a suit for declaration and permanent injunction against Urban Improvement Trust, Sriganganagar with the averments that in southern side of his residential house there is a strip of land measuring 5½ x 70 ft. and the same is fenced by him to make plantation thereon. The Urban Improvement Trust 2 want to remove the fence though the land being a stripped deserves to be regularised in favour of the plaintiff. In written, Urban Improvement Trust denied any claim of the plaintiff over the land in question and also denied that then land is a strip. As per stand of the appellant the land is part of the road and, therefore, the plaintiff cannot be permitted to encroach the same. Learned trial court, while considering the application under Order XXXIX Rule 1 and 2 Code of Civil Procedure, held that whether the land in dispute is a strip or is part of road, is to be decided after adjudication of the suit, therefore, granted the temporary injunction in the terms referred above. While challenging then order passed by learned trial court, the contention of counsel for the appellant is that as a matter of fact there is no prima facie case in favour of the plaintiff respondent in view of the fact that admittedly the land vests with Urban Improvement Trust and the plaintiff is nothing but a trespasser. The regularisation of any part of the land, even that may be strip, cannot be claimed as a matter of right and, therefore, the trial court erred while granting the temporary injunction. 3 On the other hand, on behalf of the respondent plaintiff it is contended that fencing on the land in dispute is lying from last number of years and the application preferred by the plaintiff for its regularisation is pending consideration, therefore, the trial court rightly granted the temporary injunction. Having considered the arguments advanced and on consideration of the order impugned, it is the position admitted that the land in question vests with Urban Improvement Trust and the plaintiff is a trespasser. The plaintiff cannot claim regularisation of the land as a matter of right, even if, it may be treated as a strip. The land in dispute is adjacent to a path and, therefore, Urban Improvement Trust is well within its right to remove the fencing made by the plaintiff illegally. In view of this position the trial court erred while holding that prima facie a case exists in favour of the plaintiff. No damage or loss is caused to the property owned by the plaintiff himself and, therefore, if Urban Improvement Trust removes illegal fencing, then no irreparable injury shall cause to the plaintiff respondent. For the reasons above, the trial court while granting temporary injunction in favour of the plaintiff, exercised its discretion erroneously. The order impugned, therefore, deserves to be quashed. 4 Accordingly, this appeal is allowed. The order dated 17.3.2007 passed by learned District Judge, Sriganganagar in Civil Misc. Case No.17/2007 is quashed. The application preferred by the plaintiff respondent under Order XXXIX Rule 1 and 2 read with 151 Code of Civil Procedure is rejected. ( GOVIND MATHUR ),J. Kkm/ps.