RABINARAYAN SUNDARAY Vs. SUSHILA DEI

JUDGEMENT

(1.) THE defendant has preferred litis appeal against judgment and decree dated April 29, 1995 passed by the Additional District Judge. Jaipur in Title Appeal No. 31 of 1991 affirming those dated August 19, 1991 passed by the Munsif, Jajpur in Title Suit No.29 or 1990

(2.) THE plaintiff -respondent instituted Title Suit No.29 of 1990 for permanent injunction restraining the defendant appellant from making any construction over the suit plots recorded as passage of the co -sharers and the villagers, from creating any obstruction or interfering with the right of way of the plaintiff -respondent thereon and from obstructing free -flow of air and light to the house of the respondent and further for mandatory injunction directing the defendant -appellant to remove the constructions stated to have been made by him on the suit land.

(3.) IN the Trial Court a pleader -commissioner was appointed to report whether there was any construction and obstruction by the defendant on suit passage. The pleader -commissioner has reported existence of construction on a portion of the suit passage. In view of the said report the existence of the alleged structures cannot be disputed. However, in his evidence the defendant has claimed that the latrine was constructed more than forty yours back by his father and the allegation of raising any construction on December 5, 1989 is totally false. In support of his case that the latrine was an old one. the defendant has relied upon a report of the Revenue Inspector (Ext., "D") in which it has been mentioned that the latrine is a very old one.