PHOOL CHANDRA Vs. SHYAM LAL

JUDGEMENT

(1.) THIS is a defendant's second appeal in a suit basically for demolition of a Dasa with stairs, and Gokh constructed by the defendant some 10 years before the suit was filed; the Dasa having been constructed in June 1952 and the Gokh having been constructed in 1954, and the suit having been filed in February, 1963.

(2.) THE trial court dismissed the suit on the ground that it was barred by time, and by estoppel and acquiscence, and that it was not a fit case for grant of the relief of injunction in the exercise of the Court's discretion.

(3.) HAVING heard the learned councel for the parties, I am satisfied that the view of the trial court is preferable to the view taken by the lower appellate court on this point. The plaintiff had come to court with the allegations that the construction complained of had been erected by the defendant on the land which was left open for passage from their respective houses. It is undisputed that the constructions in question project out of the defendant's house on the land reserved for passage. It has concurrently been found by the two courts below that the land of the passage belonged to the plaintiff. Now the relief claimed by the plaintiff is in the following words : (a) Yah ki basdur decree hukum imatnal dawami pratiwadi ko adesh diya jaway ki who andar miyad moiyana adalat dasa wo sirihya wo tanda, chajay wo gokh wo jangala, jo usne bajanib purab wo dakhin araji wadi ki taraf araji wadi par nikal liye hain aur jo naksa hamrista maye lal nisan se dikhalaye gaye hain jispar haraf EFGHIJUKLMNBC para hain, mismar wo band kar de aur ayanda koi encroachment wo jangle wagairah nasab na karadar surat uske kasir rahane ke bajaya Amin Adalal uprokt chizon ko mismar wo band karadi jawe aur araji wadi saaf wo khall karaye jakar wadi ko uspar dakhal kamil dilaya jawe.