KESHEO SARAN Vs. JAGDISH SARAN

JUDGEMENT

(1.) The present second appeal has been filed by the judgment debtor against the order of the court below for execution of the decree. The decree holder respondent, predecessor-in-interest Lala Faquir Chand filed Suit No. 234 of 1959, against the appellant for mandatory injunction to restore a portion of the stair case and roof which had fallen down or were pulled down by the defendant.

(2.) The plaintiff claimed that he was the owner of the Sahdari on the first floor of the accommodation as well as a portion of ground floor. The approach to that Sahdari from the ground floor was through a staircase which was in the ground floor portion of the defendant and on roof of the defendant. He claimed that he was the dominant owner and the defendant was a servient owner and he had a right to enjoy the easement without any interruption. He claimed that the defendant demolished his house and thus the roof and the upper portion of the staircase which was owned by the defendant also fell down and the plaintiff had no other approach to his portion.

(3.) The suit was decreed by the trial court. The appeal was allowed and the suit was dismissed by the lower appellate court. Thereupon the second appeal No. 1624 of 1961 was allowed by the High Court on 15-4-1968 and the decree of the trial court was restored. It was ordered that the plaintiff may get the demolished portion re-constructed at his own cost without causing the least inconvenience to the defendant. In the meantime the remaining portion of the staircase which was standing at the time of the suit and for which no relief was sought in the suit, also fell down. In the execution, the decree-holder claimed that he was entitled to reconstruct the entire jina and roof including the portions about which the relief was sought in the suit itself, nor any relief was granted in the decree.