PRATAPRUDRA MISHRA Vs. SACHI BALA SAHU

JUDGEMENT

(1.) WHO has the right to begin the suit in accordance with the provisions of Order 18, Rule 1 of the Code of Civil Procedure ('Code', for short) is the core question for consideration in this revision.

(2.) IT is necessary at the outset to state a few facts which emerge from the pleadings of the parties. The plaintiff -petitioner is the owner of Schedule 'A' house of the plaint which fell to his share in a family partition. The other portion of the house described in Schedule 'B' of the plaint had fallen to the share of his late brother Gopal Chandra Mishra, husband of defendant No. 2 and father of defendants 3 to 6. Late Copal Chandra Mishra sold Schedule 'B' house in favour of defendant No. 1 on 20 -2 -1969. During absence of the plaintiff, defendant No. 1 raised some constructions on her portion of the house (Schedule 'D') obstructing free flow of light and air to the plaintiff's house. Therefore, the plaintiff instituted Title Suit No. 12 of 1971 against defendant No. 1 which ended in compromise. According to the terms of the compromise, defendant No. 1 undertook not to make any constructions beyond five feet on the east of the partition wall dividing Schedules'A'and'B' and to leave an open space of three feet between the said boundary wall and the new construction. But despite the compromise decree inclusive of the aforesaid terms, defendant No. 1 made construction upto a length of fifty feet, whereby, there was diminution of light and air to the plaintiff's house as in Schedule 'A' seriously jeopardising his right of easement. Therefore, he instituted a suit praying for mandatory injunction for removal of the construction already made by infringing his right of easement for free flow of light and air and for permanent injunction restraining defendant No. 1 from making any construction on Schedule 'B' so as to effect his right of easement in future. Defendant No. 1 has denied all the aforesaid facts and has specifically stated that although the earlier suit ended in compromise, there was no stipulation that she would not make any construction beyond five feet on the east of the boundary wall dividing the houses as in Schedules 'A' and 'B'. As a matter of fact it was decided that she was entitled to construct to an extent of fifty feet leaving a space of three feet in between the boundary wall and the new construction. Therefore, either on account of fraud being perpetrated by the plaintiff or due to mutual mistake, instead of fifty feet, five feet was reduced into writing in the compromise petition.

(3.) THE suit was initially dismissed by the learned Munsif, First Court, Cuttack. But on appeal, the learned District judge reversed the judgment and decree of the trial Court and remanded the suit for further hearing after framing a new issue (issue No. 8) and giving the following direction :