SYED AMINA BI Vs. GHANTASALA KRISHNA MURTHY

JUDGEMENT

(1.) Deceased first respondent filed the suit against the appellants, who are wife and husband, seeking a decree of perpetual injunction restraining them i.e. the appellants from making any constructions to the south of the southern wall of the house of the second respondent, and from interfering with his possession and enjoyment of the plot shown as 'A' in the plaint plan up to the southern wall of the house of the second respondent, and also for a mandatory injunction directing them to remove the encroachments made into the air space and also his site by extending the R.C.C. roof of their terraced house and by encroaching in his plot shown as 'A' of the plaint plan by constructing a staircase respectively. Subsequent to the filing of the suit, first respondent died, and so, respondents 2 to 4, who are his wife and sons, came on record as his legal representatives and prosecuted the suit.

(2.) The case of the appellants is that they, who have an easementary right to discharge the water from the eaves of their house into the site of the respondents, did not encroach into the site of the respondents and in any event since the house was constructed on the earlier existing basement several years prior to the filing of the suit, respondents, who acquiesced the construction, cannot seek a mandatory or perpetual injunction.

(3.) In support of their case, respondents examined the 4th respondent as P.W.I and marked Exs.A.l to A.4. In support of their case, appellants examined the second appellant as D.W.I and marked Exs.B.l to B.5. The trial Court decreed the suit as prayed for. The appeal to the first appellate Court preferred by the appellant was dismissed by the decree and judgment under appeal. Hence, this second appeal by the defendants in the suit.