Aftab Ahmad vs Azizur Rahman & Others
2013 Latest Caselaw 1493 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 27
 

 
Case :- SECOND APPEAL No. - 589 of 1996
 

 
Petitioner :- Aftab Ahmad
 
Respondent :- Azizur Rahman & Others
 
Petitioner Counsel :- M.A.Qadeer,Shamim Ahmad
 
Respondent Counsel :- M.A. Siddqui,S.U. Khan
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Application No.47209 of  2011

Learned counsel for the appellant prays for adjournment for the day to enable him to prepare the appeal for admission.

learned counsel for the respondents submits that an application no. 47209 of 2012 dated 11.2.2011 was filed by him with the prayer that 'Pakad' tree standing in the portion of the defendants appellants has grown to the extent that it is now leaning towards the house of the plaintiffs respondents and damaging a portion of the house of the plaintiffs respondents. Certain photographs have been annexed to establish the assertion made in the affidavit accompanying application. No counter affidavit has been filed till date in reply to the said application.

The suit for permanent injunction was filed by the plaintiffs respondents. The suit was decreed on 27.2.1989 and in operative portion of the judgment and decree passed by the trial court, portion  and possession of both the parties have been clearly described and injunction was granted directing  both the parties  not to interfere in the use of respective portion of each other. As per the finding 'Pakad' tree is lying in the portion of defendants appellants. The lower appellate court had affirmed the finding of the trial court.

In the present appeal, on 8.7.1996 an interim order has been passed to the effect that parties shall maintain status quo inrespect of suit property as on today till further orders. Learned counsel for the applicants respondents submits that in view of the status quo order, the plaintiffs respondents are helpless and could not touch the'pakad' tree which is damaging their house.

Considering the submission  of learned  counsel  for the  applicants and the  fact that  the 'pakad' tree  which is lying in the portion of defendants  appellants is  a big  tree now  and as per the contention of the plaintiffs respondents it is damaging  the house of the plaintiffs respondents, the   status quo order  granted on 8.7.1996 is modified to the extent that the  plaintiffs  respondents  may   cut  portion of the  'pakad' tree  which is leaning  over their  house after taking  permission of the  competent  authroity i.e.  forest department etc.  It is made clear that   the  tree shall not be  cut by the plaintiffs respondents without taking prior  permission  of the competent  authority.

With these observations, the  application is disposed of.

List the  appeal  for admission on 15.5.2013.

Order Date :- 30.4.2013

P.P.