KUNDAN Vs. SHIV DAYAL

JUDGEMENT

(1.) The defendants have approached this Court through the present Regular Second Appeal. The challenge is to the judgments and decrees of the learned Courts below whereby the suit for permanent injunction filed by plaintiff, Shiv Dayal, was decreed.

(2.) Plaintiff, Shiv Dayal, filed a suit for permanent injunction claiming ownership and possession of the house in dispute. It was claimed by him that he is in possession of the same for the last 30 years. There are 4 pamalas and 4 ventilators in existence in the western wall of the house. The property was originally custodian property and the parnalas and the ventilators had been in existence even prior to the partition of the country. The aforesaid house was allotted to the plaintiff. Towards the western side of the said house, there existed 3 ft. wide lane which is being used by the plaintiff for the exit of the water of his house. The defendants had constructed one wall during the pendency of the suit, resulting into no outlet in existence towards the western side of the house of the plaintiff and, as such, the rainy water started accumulating and damaging the suit property. Accordingly, the suit for permanent injunction was filed, which later on, was amended for a suit for mandatory injunction for directing the defendants to demolish the aforesaid wall and restore the original position.

(3.) The defendants contested the suit and claimed that the plaintiff was not in possession of the suit property. It was also claimed that the parnalas and the ventilators had been constructed recently by the plaintiff. The acquisition of any easementary rights by the plaintiff was also contested. The defendants further claimed that the wall of the house of the plaintiff had fallen down and the plaintiff opened the aforesaid parnalas and ventilators while reconstructing the said wall.