MAKKHAN LAL Vs. INDRA PRASAD

JUDGEMENT

(1.) THIS appeal arises out of a suit for permanent injunction directing the defendant to construct a wall CG of he disputed room CEFG as shown in the plaint map upto the height of 7 ft. with a roof thereon with an alternative prayer that in case in the opinion of the Court the defendant could not be directed to construct the wall and the roof thereon the plaintiff might be allowed to carry out those constructions with a Duchhatti and a room on it which existed on the roof of the defendant from more than 20 years before the demolition of the disputed wall. The plaintiff further prayed that defendant be restrained by means of permanent injunction from making a wall in front of a Roshandan of the plaintiff which was in the first floor of his house.

(2.) THE case of the plaintiff in brief was that the plaintiff owned a house ABCD in the sketch map attached with the plaint excluding the room shown as CEFG in the house which belonged to the defendant. Over this room the plaintiff had a Duchhatti and over the Duchhatti there was a room of the plaintiff in the first floor. His case was that the room of the defendant was 7 ft. long and 7 ft. high and over this room of the defendant there was a Duchhatti of the plaintiff and over the Duchhatti stood his room in the first floor. He used to enjoy the vertical support of the defendant's wall for the purposes of his Duchhatti and the room over it. It was said that in the rains of 1958 the western and southern wall of the defendant's room fell down with the result that the roof of the defendant's room along with the Duchhatti and the plaintiff's room in the first floor came down which caused loss to the plaintiff.

(3.) THE trial Court framed relevant issues on the pleadings of the parties. It accepted the plaintiff's case and decreed the suit of the plaintiff for injunction as prayed for by him. But it directed that the constructions would be made at the first instance by the defendant within a period of two months from the date of decree at the expense of the plaintiff and in case the defendant failed to carry out the constructions aforesaid the plaintiff would be entitled to get it done through Court at his own expense. THE defendant was further restrained permanently from making any wall or room in front of or adjacent to Roshandan as shown in the plaint map.