CHANDRIKA PRASAD Vs. RAM CHANDRA TIWARI

JUDGEMENT

(1.) These are three connected second appeals in two suits between the same parties. While Second Appeal No. 1712 of 1964 arises from Suit No. 258 of 1960, Second Appeal Nos. 1928 and 1929 of 1964 arise from Suit no. 402 of 1960. Suit No. 258 of 1960 was filed by the first respondent Ram Chandra Tewari since deceased and now represented by his legal heirs, against the defendant-appellant Chandrika Prasad who has also died during the pendency of the appeal in this Court and is now represented by his legal representatives and defendant-respondents nos. 2 and 3. Suit No. 402 of 1960 was filed originally by the deceased appellant Chandirka Prasad against the deceased respondent Ram Chandra Tewari. The property involved in the dispute between the parties in both the suits is the same. While the deceased respondent Ram Chandra Tewari claimed in his suit No. 258 of 1960 a decree for mandatory injunction commanding the deceased appellant Chandrika Prasad and his brothers Vishwa Nath Prasad and Phool Chand to close the window in dispute and to demolish the Chabutra, the walls, the cornic and the Chhajja in dispute, the deceased Chandrika Prasad claimed by his suit No. 402 of 1960 the demolition of the walls F P, P N, N B and A G and possession over to the land. F P N M R A G and the land under the walls B N and G A, as also permanent injunction restraining the deceased respondent Ram Chandra Tewari from interfering with his (Chandrika Prasad's) possession and use of the land F P B A as the sehan and from repairing his walls A B and A D as also the Nabdan R. M. N.

(2.) It is not necessary in these cases to recite all the allegations on which the parties came to court and the several points on which they were at issue, as the controversy between them in this court has been narrowed down by the assistance of Mr. V.B. Khare, learned counsel for the appellant. One of the facts in issue between the parties was about the ownership of the land shown by letters B K E H on the sketch map annexed to the plaint in suit no. 258 of 1960 and shown by letters F P B A on the map annexed to the plaint in Suit No. 402 of 1960. The appellant's grievance is against the dismissal of suit no. 402 of 1960 in its entirety by the lower appellate court, although the trial court had decreed' it in part by issuing a mandatory injunction for the removal of the walls B N and A G and by granting a decree for possession over the sites of those walls. Suit No. 258 of 1960 was dismissed in its entirety by the trial court. The lower appellate court decreed that suit in its entirety but made a provision in the decree allowing the present appellant (who was the respondent before the lower appellate court from the decree in that suit) to maintain the Chabutra and the drain below it subject to the declaration that the land beneath the drain was held to belong to the appellant. This Chabutra is shown by the letters M N B R on the plaint map in suit No. 402 of 1960. Mr. Khare urged that the existence of the wall N B on the eastern extremity of the Chabutra obstructed the flow of the water through the drain underneath it and that the lower appellate court having recognised, the present appellant's right to flow water through the drain, the exercise of that right was nullified by the existence of the wall N B.

(3.) Learned counsel for the respondents, however, pointed out that his client Ram Chandra Tewari, who was the appellant before the lower appellate court in two of the appeals before it, has assured the lower appellate court that the wall which he had constructed over the drain did not obstruct the flow of the drain. Mr. V. B, Khare, learned counsel for the appellant in this court did not place before me any evidence to show that the said assurance given by Ram Chandra Tewari in the lower appellate court was wrong. It cannot, therefore, be said that there is any contradiction between the provisions made by the lower appellate court allowing the present appellant to maintain the Chabutra and to flow water through the dram underneath it in the decree passed by it in suit No. 258 of 1960 and in refusal of the relief for demolition of the wall at N B in suit no. 402 of 1960.