JOTI PRASAD Vs. SHOTAMBER NATH

JUDGEMENT

(1.) This appeal filed by the plaintiff is directed against the judgment and decree of Sri M. C. Agarwal, Judge Small Causes Court and Additional Civil Judge, (sic) dismissing the plaintiff's suit for the main reliefs and confirming the judgment of the trial Court. The cross-objection has been filed by the defendant because both the courts below have ordered the removal of the cisterns constructed by the defendants on the joint land and also against the injunction granted by the lower appellate Court.

(2.) Briefly stated the facts are that the parties are owners of houses in the same locality in the city of Moradabad. In front of We plaintiff's house there is first his verandah then a chabutra and then another chabutra. To the west of the last Chabutra the defendants have their house. The defendants have a projecting balcony towards the case of their house and according to the plaintiff's own case a portion of this balcony has been in existence for a long time and the land under this old balcony is also said to belong to the defendant. To the north of this balcony, according to the plaintiff's case, a newbalcony was constructed by the defendants in 1942 on a land 15'x 4 1/2' and two cisterns were also newly constructed in the land under the balcony. tHIS LAND was said to belong to the plaintiff exclusively. It was also complained of that the defendants had opened a new parnala in the eastern wall towards We southern (sic) their old balcony. Consequently the present suit was instituted on (sic) February 1950 for removal of the defendants' balcony (sic) suring 15' x 4 1/2', for the removal of the two (sic) the parnala. An injunction was also prayed for directing the defendants not to use the land in dispute in any (sic) except for a rasta and not to flow any water on the (sic) land.

(3.) The suit was resisted, inter alia, on the grounds that the land in dispute did not belong to the plaintiff out (sic) the defendants and that the constructions Including the citterns and the parnala were ail old. me suit was also (sic) to be barred by limitation.