MOHINDER SINGH Vs. SURMUKH SINGH

JUDGEMENT

(1.) The defendant-appellant is in second appeal before this Court.

(2.) Briefly stated, the plaintiff-respondents instituted a suit for mandatory injunction directing the defendant to remove the roof put on street 'S-S1' and 'Y-Y1' whereby he had connected the first floors of his houses and thereby covered the public street. It was pleaded that the defendant had got four houses and these houses were corner houses in the intersection of two streets running from East to West and the other running from North to South. The defendant had covered the street by constructing roof in such a manner that the roof of all his houses was interconnected. As per site plan produced on the file as Exhibit P1, it was shown that the house of plaintiff, Lal Singh, is adjacent to one of the houses of the defendant and the house of plaintiff, Ajaib Singh, adjoins the other house of the defendant. The said roof that had been constructed by the defendant was at a level of 10' and accordingly, the trucks/trolleys loaded with 'Toori' upto the height of 15', which earlier used to pass through the streets without any obstruction, now faced the apparent obstruction. It was pleaded that the defendant had constructed such roof in terms of connecting the roof of his four houses and thereby covering a public street by taking advantage of his proximity with the Sarpanch of the Gram Panchayat. It was further pleaded that since the houses of the plaintiffs adjoin the houses of the defendant and by virtue of such construction of roof, it has resulted not only in the obstruction of the loaded vehicles passing through the street but had also impaired the free flow of light into their respective houses. Repeated requests have been made to the defendant to remove such construction and even the Gram Panchayat had been requested to take suitable corrective action but having evoked no response, accordingly, the suit had been filed.

(3.) The suit was contested by the defendant by setting up a preliminary objection as regards maintainability of the suit by asserting that it was hit by the provisions of Section 91 of the Code of Civil Procedure. On merits, it was pleaded that plaintiff No. 2 had not been residing in the village for the last four years and, in fact, he was residing at village Tewar. Likewise, it was pleaded that even plaintiff No. 1 was, in fact, residing at village Cholta and a school was being run by a tenant in a part of the house and certain other tenants were residing in the remaining part of the said house. The defendant, however, did not deny the fact of raising the construction and having covered the street so as to interconnect the roof of his houses. Defendant also set up a plea that since no objection had been raised at the time of construction, the plaintiffs would now be estopped in law from filing the suit. The defendant also gave various instances of the villagers having constructed the roof over the street and stated that such was the practice in the village.