BRIJ MOHAN Vs. RAM DIA

JUDGEMENT

(1.) THIS is plaintiffs second appeal challenging the judgments and decrees of the courts below, whereby his suit for mandatory injunction directing the respondents to remove the construction raised on the land marked as 'ABCD' in the site plan situated in southern side of the house of the appellant at Taraori, District Karnal with a further decree for permanent injunction restraining the respondents from raising further illegal construction over the said piece of land and closing the windows and ventilators existing in the southern wall of the house of the appellant was dismissed and further his appeal was dismissed by the lower appellate Court. In the suit, the plaintiff -appellant pleaded that he along with his brother Parveen Kumar is owner in possession of a double storey house bearing No. 60 situated in Ward No. 4, Mohalla Kanungo, Taraori, District Karnal, as detailed in the plaint. The said house was constructed by his forefathers more than 100 years ago. There exists a common piece of land marked as 'ABCD' in the site plan, attached with the plaint, thereby abutting towards southern side of the above mentioned house of the appellant, which is used by the plaintiff -appellant as well as all the residents of the surrounding houses for common purposes i.e. for passing the daily dirty water and the rainy water of their respective houses, and the windows and ventilators of their houses also open towards this land and they are enjoying light and air from there for the time immemorial. It is further averred that in the southern side wall of the house of plaintiff, marked as 'AB' shown in red colour in the site plan, there also exist two windows at points 'E' & 'F' and two ventilators at points 'X' & 'Y', five parnalas i.e. two parnalas at point 'G' & 'H' of the roof of the first floor and two parnalas of the room at the first floor and one parnala/drain of the kitchen at the ground floor, which are marked as 'I' & 'J' of the room on the first floor and 'K' of the kitchen at ground floor, in the site plan. The said windows and parnalas are opening towards the common vacant piece of land marked as 'ABCD'. The said windows and parnalas are in existence in the wall marked 'AB' since the time of construction of the house of the plaintiff. The plaintiff is enjoying the free access of light and air through the said windows marked 'E' & 'F' and ventilators marked 'X' & 'Y' and similarly the plaintiff is using the common land marked 'ABCD' to throw his daily dirty water and rainy water of the house over there, which goes into the municipal drain situated in the street through the drain passing on the common land for the last more than 100 years without any interruption and hindrance and also have the common interest to use the said land.

(2.) EVEN otherwise also, previously the forefathers of the plaintiff and after them, the plaintiff is enjoying the free access of light and air through the said windows and ventilators and using the common land marked 'ABCD' for throwing and passing their daily route and rainy water of his house for the last more than 100 years and as such the plaintiff has acquired the easementary right by way of prescription.

(3.) DEFENDANT -respondent Ram Dia filed written statement resisting the suit on various legal grounds. On merits, it was denied that in the south of the house of plaintiff, there exists a common vacant land shown by letters 'ABCD'. It was alleged that towards south of the house of the plaintiff, there is house of the defendant; there exists no common land in the courtyard of the defendant; the defendant has a legal right and interest to raise construction in his courtyard; the land is owned and possessed by him from the time of his ancestors and the plaintiff and his forefathers have no concern whatsoever in respect of the land in dispute. It was further denied that the land has been used by him by opening the windows and ventilators thereby enjoying the light and air. It was further stated that in fact the plaintiff has got opened the windows and ventilators by making a request and with an assurance that the same will be closed as and when the defendant would construct second storey of the building over his land including the land in dispute. It was prayed that the suit has been filed on frivolous grounds and is liable to be dismissed.