SURESH CHANDRA JAIN Vs. AIJAZ AHMAD SOLAT

JUDGEMENT

(1.) THIS second appeal has been filed by the plaintiff against the dismissal of his suit for permanent and mandatory injunction in respect of a strip of plot lying in between the houses of the parties. The appeal was admitted on the following substantial question of law :

(2.) THE plaintiff's case is that he had purchased the house together with appurtenant land as per boundary detailed in the registered-deed dated 22-6-1973 (Ex. P. 1), from Hazi Abdul Sattar. The boundary is also shown in the attached map. The suit is in respect of the plot described as 'open yard' on the west side of the said house, and to the east of the house of the defendant Dr. Solat.

(3.) DR. Solat purchased his house on 18-4-1973 through sale-deed dated 18-4-1973 (Ex. P. 2) from one Durga Prasad. That house was Kachcha and had no openings like door, windows or sky lights towards the plot in dispute. The defendant dismantled the house and constructed a new one. In the wall running adjacent to the plot in dispute he fitted doors, windows and sky lights. He also constructed a verandah by encroaching 3' width of the Plot in dispute. He fitted delivery pipe on the said wall. The plaintiff submitted that all these acts of the defendant were without any right or authority and if he is allowed to complete the construction, he will suffer irreparable injury and the privacy of his house will be violated. The defendant was restrained by temporary injunction on 14-9-1974 to carry on further construction work. However after dismissal of the suit in plaintiffs default on 3-7-1975, the defendant completed the construction. By order dated 18-11-1976, in MJC No. 22/75, the suit was restored on 22-11-1976. The plaintiff amended the plaint suitably and prayed for relief of mandatory injunction for closure of the doors, windows etc. and removal of the encroachment. The defendant filed written statement opposing the suit. He submitted that the plaintiff got incorrect measurements and boundary mentioned in the sale-deed while purchasing it from the previous owner. According to him, the plot in dispute is Government land and that he reconstructed his house after obtaining necessary sanction.