RAJINDER SINGH Vs. MAHINDER SINGH

JUDGEMENT

(1.) APPEAL is restored by allowing the application under Order 9 Rule 9 of Code of Civil Procedure, 1908 (CPC) and also by condoning the delay of 21 days in filing the application for restoration. Appeal is restored to its original number.

(2.) EXEMPTION allowed subject to just exceptions.

(3.) THE facts of the case are that originally the total area of the property was 250 sq yds and was owned by the father of the present parties, namely Sh. Banwari Lal alongwith one Sh. Bhanwar Singh. Sh. Bhanwar Singh and Sh. Banwari Lal divided this property by taking 108 sq yds each leaving behind a gali of about 5 feet wide between the two lateral portions of 108 sq yds which fell to the shares of Sh Banwari Lal and Sh. Bhanwar Singh. Out of the 108 sq yds of Sh. Banwari Lal, an area of 54 sq yds in the front portion fell to the share of the respondent/plaintiff and the back portion of 54 sq yds fell to the share of appellant/defendant. For going to the back portion of 54 sq yds of appellant/defendant a passage out of 54 sq yds of the respondent/plaintiff has been made. The case of the respondent/plaintiff was that the passage falling in the 54 sq yds portion of the respondent/plaintiff is only to be used as an ingress and egress by the appellant/defendant to go to his own portion of 54 sq yds and that the appellant/defendant cannot use the passage to open windows or to install exhaust fan or demolish the pillar or beam constructed by the respondent/plaintiff.