SHARDA DEVI Vs. DURGA PRASAD

JUDGEMENT

(1.) This is a plaintiffs' appeal from an appellate decree. It arises out of a suit for permanent prohibitory and mandatory injunction, that was instituted by the present appellants against the defendant-respondent, initially for a relief of permanent prohibitory injunction alone, to the effect that a decree be passed against the defendant forbearing him from interfering with the plaintiffs' possession over property shown in Schedule A to the plaint, or demolish the southern wall of that property or to fix a door opening into the plaintiffs' property. Pending suit, claiming a violation by the defendant of breaching the southern wall and opening a door onto the plaintiffs' land, relief by way of mandatory injunction was also claimed in the suit to the effect that the door newly opened and fixed to the northern wall of the suit property be ordered to be closed, and in the event of the defendant failing to comply with the decree, to cause the same to be done through process of Court at the cost of the defendant. Appropriate amendment incorporating these supervening events was applied for, granted and made to the plaint to support the added relief. This suit was was numbered on the file of the learned Munsif, Mahawan, Mathura as Original Suit no.202 of 1974.

(2.) The suit came up for determination before the learned 5th Additional Munsif, Mathura on 21.03.1989, who proceeded to decree the same with costs, both for the permanent prohibitory as well as mandatory injunctions, in terms of the reliefs claimed. The defendant-respondent filed an appeal to the Court of the District Judge, Mathura, that came to be numbered as Civil Appeal no.35 of 1989. The said appeal came up for determination before the learned Ist Additional District Judge, Mathura on 17.12.1991, who allowed the appeal with costs throughout, setting aside the decree of the Trial Court and dismissed the appellant's suit. The plaintiffs-appellants shall hereinafter be referred to as the 'plaintiffs' whereas defendant-respondent would be referred to as the 'defendant'.

(3.) Aggrieved, the second appeal has been filed by the plaintiffs. It was admitted to hearing on 17.11.1992 on the following substantial question of law: