1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO5059 OF 2010 CHANDRAPAL RAMSAMUZ TRIPATHI ..VS.. MAAHIPAL RAMSAMUZ TRIPATHI - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri B.D.Khati, advocate for petitioner Shri H.D.Dangre, advocate for repsondent CORAM: SMT. VASANTI A. NAIK, J. DATE: MARCH 01 , 2011 . By this petition, the petitioner challenges the two concurrent orders granting temporary injunction in favour of the respondent/ plaintiff and restraining the petitioner/ defendant from causing obstruction and interference to the underground pipeline work of existing privy tank. The petitioner is the original defendant. The plaintiff and the defendant are the real brothers. The plaintiff claims to be the owner of the suit property and the defendant/ petitioner is in possession of the two rooms of the suit property as a licensee. Since the defendant refused to deliver the possession of the suit property after the termination of the licence, the suit was instituted for eviction and possession of the suit property. The plaintiff had constructed a privy and bathroom after obtaining permission of the Gram Panchayat and when the plaintiff had started the work of laying down the pipeline and connecting it to the tank, the defendant obstructed the plaintiff and hence the application 2 for grant of temporary injunction was moved by the plaintiff before the trial court. The defendant denied the claim of the plaintiff and also denied his ownership. It was denied that the plaintiff had erected a privy and bathroom by obtaining the permission of the Gram Panchayat. The defendant pleaded that he had not caused any obstruction and interference to the alleged construction of the plaintiff and hence the defendant sought for the dismissal of the application for grant of temporary injunction. Both the courts, on a proper appreciation of the material on record held that the plaintiff had made out a prima facie case and the balance of convenience was also in favour of the plaintiff. Both the courts held that the plaintiff would suffer great irreparable loss in case the injunction was refused. Both the courts relied on the documents produced by the plaintiff to show that he had purchased the suit property by a registered sale deed dated 19.11.1998. The name of the plaintiff also appeared in the 7/12 extract. The courts held that the plaintiff being the owner of the property was entitled to enjoy the suit property peacefully and the defendant could not have caused any interference while the plaintiff tried to connect the privy to the water tank. The courts found that the construction of a bathroom and a toilet without any proper out-let would definitely prejudice the plaintiff and since the plaintiff was residing on the first floor, 3 it was necessary for the defendant who was residing on the ground floor, to permit him to connect the toilet to the tank, so that the defendant should not be a sufferer as he was residing on the ground floor. The courts on a proper appreciation of the documents on record, rightly granted a temporary injunction in favour of the plaintiff. The submission made on behalf of the petitioner that since a similar relief was not claimed in the plaint, the same cannot be granted by the court, is liable to be rejected as the plaintiff was seeking an incidental relief which pertained to the enjoyment of his property. The judgment reported in 1997 Rajasthan Page 198 and relied on by the counsel for the petitioner cannot be made applicable to the facts of this case. Since the findings recorded by both the courts are pure findings of facts, based on a proper appreciation of the material on record, they call for no interference in exercise of the writ jurisdiction. The writ petition fails and is dismissed with no order as to costs. JUDGE SMP