IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1460/2008 (M/S) Ram Narayan …….. Petitioner Versus Mohan Lal Kandwal …….. Respondent Mr. Alok Singh, Senior Counsel with Miss Mamta Joshi, Advocate for the petitioner. Mr. Virendra Kaparwan, Advocate for the respondent. Hon’ble V.K. Gupat, C.J. With the consent of the learned counsel for the parties, this petition is taken up today for final disposal at the motion hearing stage without admitting it to hearing. In the suit filed by the respondent-plaintiff in the trial Court, an application for Temporary injunction was filed which was rejected. The appeal against the said rejection order was taken up by the respondent-plaintiff before the learned District Judge, Tehri Garhwal, New Tehri bing Misc. Civil Appeal No. 04 of 2008 Vide Judgment dated 15.07.2008, the learned District Judge dismissed the appeal of the appellant-respondent-plaintiff, but at the same time passed an order in the nature of Temporary Injunction directing the parties not to change the nature of the property or to make any construction upon the disputed land. Aggrieved against this part of the Appellate Court order, the defendant has filed this petition under Article 227 of the Constitution of India. The relevant part of the impugned judgment dated 15.07.2008 by which, while dismissing the appeal, Temporary Injunction was granted, is reproduced hereunder, which reads thus: “In these circumstances, I am of the view that the learned trial Judge has rightly dismissed the temporary injunction application of the plaintiff. But seeing the special circumstances of the case that neither the plaintiff nor the defendant has shown the case of temporary injunction in their favour, and, prima facie the real owner Ishwari Dass in not party to the suit, I am of the view that the suit property should be preserved from being damaged or altered by both the parties to the suit or making any construction thereupon. Hence, in these circumstances, by dismissing the appeal of the appellant it is in the interest of justice that injunction order not to change nature of property or make any construction upon the disputed land should be passed against both the parties to the suit. Hence, I am of the view that the appeal be dismissed, but for preservation of the property of real owner both the parties should be stopped from making any construction or alteration in the disputed property during pendency of the suit.” In so far as the plaintiff-respondent establishing the prima Facie case is concerned, the learned appeal Court has agreed with the learned trial Court that he had failed to do so. It is undisputed case of the parties that the plaintiff-respondent has purchased merely 72 sq. yards of land from Ishwari Dass, the grand father of petitioner- defendant. The allegation against the plaintiff-respondent is that he had constructed on a piece of land over and above the aforesaid 72 sq. yards. Be that as it may, it was not the case of the respondent-plaintiff either in the trial Court or in the appeal Court that the defendant- petitioner was raising any construction over any part of the land which belonged to or was in the possession of the respondent-plaintiff. Merely because grand father of the petitioner defendant Ishwari Dass was not a party in the suit, it was no business of the learned Appeal Court, by invoking his absence, to pass an order protecting his interest or rights over the property in question. On that ground alone, the impugned judgment suffers from error apparent on the face of the judgment as well as is in patent violation of the established principles of law. The impugned judgment is set aside. The Temporary Injunction is vacated with all the consequences. (V.K. Gupta, C.J.) 20.08.2008 A