THOMAS AMBROSE Vs. RAMDAS BALMIKI

JUDGEMENT

(1.) This appeal is by the defendant, which was admitted by a Bench of this Court on the following substantial question of law :-

(2.) Facts giving rise to filing of the appeal briefly stated are that the plaintiff filed a suit on the ground that he is the owner of House No. 820 whereas the defendant is the owner of House No. 821. It was further pleaded that another House No. 822 is situate adjacent to the house of the plaintiff and in front of their houses, there is a common passage of 8 feet in width which is being used by the plaintiff for several years. However, the defendant raised construction of latrine as well as wall on the passage in dispute and has deprived the plaintiff of his right to use the passage in question. Accordingly, the plaintiff filed a suit seeking the relief of declaration, permanent injunction as well as mandatory injunction seeking removal of construction raised by the defendant on the passage in question.

(3.) The defendant filed the written statement in which inter-alia it was pleaded that the passage in question infact belongs to the defendant which is 4 feet in width. The passage in question is not the common passage and the door of the house of the plaintiff opens on the main road, thus, he has an alternative way to ingress and egress to his house. It was further pleaded that the plaintiff was involved in an illegal activities therefore, the defendant had constructed the boundary on the passage which belongs to the defendant.