RAM DAS Vs. RADHA PIYARI

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by District Judge, Farrukhabad on 06.09.1988 in Civil Appeal No.99 of 1987 arising out of Original Suit No.573 of 1984 (Radha Pyari Vs. Ram Das and others) decided on 06.05.1987.

(2.) The brief facts giving rise to this appeal are that plaintiff-respondent Smt. Radha Piyari (hereinafter referred to as 'respondent') filed Original Suit No.573 of 1984 with the allegation that she was owner in possession of the house shown in the plaint map by the letters A B C F. The said house was situated at Farrukhabad. It was alleged that towards west of the said house there is a khandhar the level of which was lower than that of the respondent's house. The slope of the ground floor of the said house as well as parnala was towards the west of the said house, the domestic and rainy water of the respondent's house used to flow up to the municipal drain flowing north south towards west of the said khandhar. The said khandhar is shown by letters H I J K. The respondent's house and the khandhar lying towards west were originally owned by Sri Mahadeo Prasad and Murli Dhar sons of late Munshi Nek Ram. It was alleged that in between the houses of both the parties there was three feet wide land which has been shown by letters F H I D. The respondent claims to be the transferee of the house along with this three feet wide land as per sale deed dated 2.3.1948. The predecessor of the appellant namely Sri Itwari and Sri Bhikka became the owner in occupation of the khandahar which lay towards the west of the respondent's house as per the sale deed deed 28.05.1947. The respondent pleaded that in the month of December, 1983 the appellants illegally constructed one kothri upon the land shown by letters I I1 HD and also put a wall and a door as shown by letters E F. Hence, the suit was for the relief of mandatory injunction.

(3.) The appellant filed written statement and contested the suit on the ground that one Smt. Sharad Kumari was co-owner of the house and she was not arrayed as a party. It was further pleaded that their predecessor S/Sri Itwari and Bhikka obtained sale deed in respect of khandhar in the year 1947 and thereafter they constructed about 9 kotharies with the permission of the Municipal Board. It was pleaded that there was no such drain as X X1 as shown by the respondent in the site plan. The respondent wanted to put up a nali in the sehan of the appellants unlawfully. The respondent has no right to flow water towards the house of the appellants and the land in question does not relate to the house of the respondent.