RAM CHAND LAKHANI Vs. SK UMAR ALI

JUDGEMENT

(1.) DEFENDANT No. 1 is the appellant against a reversing judgement. Plot no. 3460 measuring 13' x 20' recorded as Nainjori situate between the plaintiff's building on plot no. 3439 and the Bhadrak station feeder road constitutes the subject-matter of dispute. According to the plaintiff, he has some windows and a door opening on the southern side of his building which is bounded by a compound wall. There is a gate in the compound wall opening to the suit land through which he was having access to the Bhadrak station feeder road from his house. Previously, the suit land had vested in the District Board, but at present, it is under the administrative control of State Government in the Revenue Department. On prior occasions, plaintiff had prevented defendant no. 1 from making any construction on the disputed land, but on 13-3-1963, finding that defendant no. 1 had collected some building materials and started constructions, he filed the suit for a permanent injunction restraining defendant no. 1 from making any construction or raising other obstructions on the suit land and for a mandatory injunction to remove such constructions, if any, made during the pendency of the suit alleging that his right to light and air and his right to access to the Bhadrak station feeder road will thereby be interfered with.

(2.) DEFENDANT no. 1 resisted the suit alleging that plaintiff is estopped from claiming any such right as his predecessor-in-interest had taken lease of a portion of the land from the District Board; that by the proposed constructions, the right of plaintiff to light and air will not be interfered with as there is open space 7 feet in width between his building and compound wall and that he has no right of passage over the disputed land to the feeder road. According to him, plaintiff and his family members have access to the road through a door in their building facing to the east and there is also a common passage in between plaintiff's building and the compound wall to the south which leads to the road through a big gate 12 feet in width on the eastern side. He claims to have taken lease of the vacant site measuring 33' x 22' including the disputed land from the District Board for the last twentyfive years or so and the temporary structures which existed there having fallen down in 1962, he made preparations to reconstruct the same. The present suit has been filed by the plaintiff as he failed in his attempt to take lease of a portion of the suit land. DEFENDANT no. 2, the Collector, besides supporting the case of defendant no. 1, in general, has further pleaded that the service of notice u/s 80 C. P. C. is not legal.