JUDGMENT
Mohd. Yamin, J.
1. This is a revision against the order of learned District Judge, Jaipur City, dated 13.12.96 by which he allowed the appeal against the order of learned Additional Civil Judge (J.D.) dated 6.11.96.
2. I have heard the learned Counsel for both the parties at length and have gone through the record.
3. Plaintiff Capt. C.R. Dudi filed a civil suit along with an application under Order 39 Rules 1 and 2 CPC. His case was that one Baijnath Sharma had purchased plot, described in para No. 2 of the plaint from Sanyukt Grah Nirmaan Samiti, Jaipur. He obtained allotment letter as well as site plan as well as obtained the possession of the plot. This plot measured 456 sq. yard. The plaintiff purchased the same from Shri Baijnath Sharma through agreement dated 26.7.91 @ Rs. 300/- per sq. yard and advanced Rs. 5,001/-and obtained possession thereof. The plaintiff was in possession of the said plot. He constructed a number of rooms, obtained electric connection and started a Milan Garden Restaurant. He also obtained a licence from the Excise Department in order to run Beer Bar. The allotting society was found involved in illegal activities and it was also found that it had cheated so many members. Its office bearers absconded. Consequently the co-operative department appointed an Administrator in order to look after the affairs of the society.
4. It was further averred in the plaint that Moti Bhawan Grah Nirmaan Samiti was having its land on western side. According to the plaintiff there was a street measuring 18’x136′ on the western side which was to be kept open. The plaintiff further averred in the plaint that the petitioner defendant wanted to use this land and was trying to raise construction thereon. On 7.9.96 he came to the plaintiff and showed an allotment letter and insisted that he would raise construction on this part of the land. According to the plaintiff the land which the petitioner claims to be allotted to him is a part of a thorough lane which crosses even through plot No. 318 and then meets the main road. The litigation about that, piece of land was also pending before the civil court.
5. The case of defendant Shri S.S. Arya before the trial court is that plaintiff petitioner has himself committed trespass over the land in question because according to his own averments the area of his own plot was 456 sq. yard while in para No. 9 he has mentioned it to be 471.25 sq. yard. He has further submitted that plot No. 320-C measuring 18’xl36′ equivalent to 272 sq. yard was allotted to him by Sanyukt Grah Nirmaan Samiti, Jhotwara on 21.4.95 over which he has possession right from the very beginning. He let it out to one Dungar Ram on a monthly rent of Rs. 200/-so that he may keep his buffalo there. The patta has been issued to him by the society and that the plaintiff by showing the same as a right wants to usurp it. The learned trial Judge came to the conclusion that there was a material question to be tried and in this view there was a prima facie case of the plaintiff and, therefore, passed an order of status quo. Aggrieved by this order an appeal was preferred by S.S. Arya before the learned District Judge, Jaipur City, who allowed it and set aside the order which was passed by the learned trial Judge.
6. Learned Counsel for the petitioner submitted that the learned District Judge made out a new case in his order while the plaintiff petitioner had not pleaded the easementary rights towards the plot of the respondent. He also submitted that the petitioner had purchased the plot from the original allottee and was having possesson thereon. He obtained electric connection, also obtained a licence from the Excise Department to run a Beer Bar and that he had a prima facie case. He also submitted that in case defendant S.S. Arya is not restrained and status quo is not maintained, the defendant S.S. Arya will raise constructions on the land which is definitely a road and it is by some mischief that the land of the road has been turned into plot No. 320-C. His submission is that generally the residential plots allotted by the societies are not of this size and it itself indicates that if a plot is only 18 feet wide, it might be a road and not a residential plot. So according to the learned Counsel it is such a case in which this Court should interfere.
7. On the other hand, learned Counsel for the defendant respondent has submitted that the plaintiff had himself trespassed over the land of the defendant which he alleges to be a part of the road. He submitted that the injunctions are granted on the basis of equity and the maxim of the equity is that one who seeks equity must do equity. Since the petitioner has himself trespassed over the land which is a part of plot No. 320-C, he cannot be granted injunction in any form. He also submitted that the petitioner does not have any title in his favour as he has taken the plot in resale through an agreement to sale.
8. I have considered the rival contentions raised by the learned Counsel. True that the revisional court has very limited jurisdiction, but it is also true that the appellate court should have been slow in interfering the discretionary order of the trial court unless he had come to the conclusion that the order of the trial court was perverse. A reference may be made to Vimla Devi v. Jung Bahadur . I find from the order of the learned District Judge that he did not give any suchfinding that the order of the learned trial court was perverse and even then he interfered and the order granted by the learned trial court was interfered with. What the trial court had done was a just and proper order maintaining status quo which meant that no construction would be done by defendant. In this view of the matter I feel that the learned District Judge committed an error of jurisdiction in allowing the appeal.
9. Consequently, I allow this revision petition, set aside the order of learned District Judge and maintain the order of the learned trial Judge by which he had ordered that the defendant will not raise construction on plot No. 320 and will maintain status quo. The status quo as stands today shall be maintained by defendant.