ALGOO Vs. RAM PHAL

JUDGEMENT

(1.) THE plaintiff filed a suit for permanent injunction against the defendant and prayed for demolition of the illegal construction alleged to have been made by the defendant on the said land on the pleadings that it was the Sahan of the plaintiff and that he having perfected his rights under Section 9 of the UP ZA and LR Act, his possession could not be interfered by the defendant and that construction if any, made by him was liable to be demolished. This Regular Suit No. 108 of 1970 was decreed by the III Additional Munsif, Pratapgarh, on 22-11-1976. THE defendant came up in appeal and the first appellate court by its judgment and decree dated 9-8-1978 in Civil Appeal No. 18 of 1977 dismissed the defendant's appeal. Aggrieved, the defendant has come up in the present second appeal before this Court.

(2.) I have heard the learned counsel for the appellant, Sri H. N. Tilhari, who has taken me through the material evidence and documents. Since questions of fact are concluded by concurrent findings of the two courts below, Sri Tilhari placed reliance on a decision of their Lordships of the Supreme Court reported in Maharaj Singh v. State of Uttar Pradesh, AIR 1976 SC 2602 and confined his argument on the basis of the law propounded therein to the fact that the defendant had his Sahan land and that the plaintiff had nothing to do with it. The submission in a nutshell was that the defendant having perfected his rights under Section 9 of the UP ZA and LR Act in respect to the land, the plaintiff could not be granted decree for injunction as also a decree for demolition of the constructions thereon.

(3.) IN paragraph 25 of the judgment, their Lordship further held "that the large open spaces cannot be regarded as appurtenant to the terraces, stands and structures". The test was whether the large spaces were subsidary or ancillary and implied enjoyment of the buildings, and held thereafter, after examining the meaning of the word "appurtenance" as denned in Words and Phrases. Legally Defined in Butterworths, 2nd Edn., that this word included "all the incorporeal hereditaments attached to the land granted or demised, such as rights of way. of common............but it does not include lands in addition to that granted' and concluded in paragraph 27 that the touchstone of the appurtenance was dependence of the building on what appertains to it for its use as a building.