HAKIM MOHD AKBAR ALI Vs. MOHD AMIN

JUDGEMENT

(1.) THIS is a plaintiffs second appeal arising out of a suit for prohibitory and mandatory injunction as well as for recovery of Rs. 500/- as damages. The trail court had decreed the suit. The appellate court, however, reversed the decree of the trial court and dismissed the suit. Hence this second appeal.

(2.) BRIEFLY, the plaint case was that the plaintiff house lay towards the north of the wall AB shown in the plaint map. In the south of this house was plaintiff's Baithak which was later constructed into a double-storeyed room ABCD shown in the plaint map. Towards the east of the plaintiff's house there was a piece of vacant land which was acquired by the defendant. The wall AB was exclusively owned by the plaintiff and upon this wall rested the support of the room ABCD. The water from the plaintiff's house always used to flow towards the west through the wall AB. The (sic) of the plaintiff's house were also inclined towards the west. The defendant, however, dug up a 9" hole into the wall AB in the upper storey and fixed bricks in that wall. Before doing that, the defendant dismantled the tonda, chhajja as well as Khapral of the plaintiff's upper wall. When the defendant did not stop, the plaintiff had to lodge a First Information Report. On account of the illegal acts of the defendant, the wall AB developed a crack causing loss to the plaintiff amounting to Rs. 400/-. As the defendant was continuing to give threats to dismantle the remaining part of the chhajja and tonda, the present suit was brought for prohibitory injunction as well as mandatory injunction directing the defendant to restore the wall AB to its original state.

(3.) ON appeal by the defendant, the lower appellate court reversed these findings and held that the wall belonged exclusively to the defendant. It has further found that the defendant has caused no damage to that wall in any case, so as to entitle the plaintiff to any relief for damages. The lower appellate court on a consideration of .the evidence including the admission of the plaintiff, has recorded a categorical finding that the water of the plaintiffs house used to flow north and south and not towards the house of the defendant as alleged by the plaintiff.