HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 119/2017
Kirodimal And Ors.
----Appellants
Versus
Jagdish Narayan Goyal
----Respondent
For Appellant(s) : Mr. Tanveer Ahmad For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL Order 13/07/2022 Appellants-defendants have preferred this second appeal against judgment and decree dated 18.11.2016 passed by Additional District Judge No.2, Alwar (Raj.) in civil appeal No.111/2009 affirming the judgment and decree dated 16.02.2005 passed by Civil Judge (J D) Thanagaji, Alwar in Civil Suit No.21/1995 wherein the suit filed by appellant-defendants was dismissed.
Learned counsel for appellants submits that appellants have also a right to have access to their residential houses through stairs in question and much prior to filing of the suit, appellants were using the stairs for ingress and egress to their houses properties situated at the first floor.
Respondent-plaintiff does not have any absolute ownership and right to use the stairs and cannot deprive appellants- defendants from using the stairs in question. However, two courts below have committed illegality and jurisdictional error in passing a decree in mandatory form against appellants treating the stairs (Downloaded on 19/07/2022 at 09:29:38 PM) (2 of 2) [CSA-119/2017] in question in the absolute ownership and possession of respondent-plaintiff.
Heard.
This second appeal requires consideration and is admitted on following substantial question of law:-
"Whether both the courts have committed jurisdictional error in treating the stairs in question in the absolute ownership and possession of the plaintiff and in passing the mandatory injunction against the appellant to close the gate and stopping the access of appellant from the stairs to reach in his use properties at first floor?
Issue notice to respondent of appeal as well as stay application.
Record has already been received.
Till further orders, the operation of impugned judgment and decree dated 18.11.2016 passed by Additional District Judge No.2, Alwar in civil appeal No.111/2009 and the judgment and decree dated 16.02.2005 passed by Civil Judge (J.D.) Thanagazi Alwar in Civil Suit No.21/1995 shall remain stayed and both parties shall maintain status quo in relation to stairs in question as it exists today.
(SUDESH BANSAL),J SAURABH/102 (Downloaded on 19/07/2022 at 09:29:38 PM) Powered by TCPDF (www.tcpdf.org)