1994 PLP 581 (MLD)

This judgment will also dispose of Civil Revision No.460 of 1988 as common questions of law and facts have arisen in both of them.

2. The parties are transferees of different portions of the same property from the Settlement Department. The respondent/plaintiff is the transferee of the shops on the ground-floor abutting the road whereas the petitioners have alleged to be the transferees of residential portion on the ground-floor at the back of the said shops as also the upper portion constructed on the said residential portion. Learned counsel for the petitioners when questioned frankly' admitted that there is no construction .raised on the roofs of the shops.

3. The respondent filed a suit for permanent injunction for a decree to restrain the present petitioners from raising any construction over the roofs of the said shops and using the same in any manner. The trial Court appointed a Local Commissioner who inspected the spot. According to his report there is no stair present in the shops to approach the roofs of the shops by the owners of the shops whereas the petitioners' only approach to their rooms in the first floor is through the roofs of the said shops. The objections against the said report are yet to be filed and the correctness or otherwise of the said report has to be determined by the trial Court after recording evidence.

4. The trial Court through order, dated 15-9-1987 accepted the application and issued temporary injunction restraining the present petitioners from raising any construction on the roofs of the shops and using the same. This order was challenged in appeal before the lower Appellate Court which has been dismissed through order, dated 17-2-1988. Both these orders have been challenged in this revision petition. .

5. Since the Local Commissioner has given the report that the petitioners have no other passage to approach the rooms transferred to them in . the first-floor except through the roofs of the said shops, therefore, respondent could not have been held to have prima facie case as regards temporary injunction qua the use of the roofs of the shops as passage. As regards raising of construction over the roofs of the shops and changing its nature and character and use of the same for any other purposes the respondent had prima facie case and he would have suffered irreparable loss and inconvenience if the petitioners were not restrained from raising any construction over the said roofs and using the same for the purposes other than as a mere passage in order to approach the rooms in the first floor.

6. Both the revision petitions are partly accepted. The orders passed by the two Courts below are modified to the extent that the application for temporary injunction filed by the respondent is accepted to the extent that the present petitioners are hereby restrained from raising any construction over the roofs of the shops, change its nature and character and using the same for any purposes other than as a mere passage in order to approach the rooms in the first-floor. It is emphasised that they can use the roofs of the said shops as a passage only to approach their rooms in the first-floor and for no other purpose. There will be no order as to costs. The trial Court is directed to dispose of both the suits before 31-10-1993 positively and compliance shall be reported. H.B.T./M-957/L Order accordingly.