MOHINDER SINGH Vs. RAM MURTHI

JUDGEMENT

(1.) This Regular Second Appeal has been filed by the defendants against the judgment and decree dated 21.1.1984 passed by the Additional District Judge, whereby the appeal filed by the plaintiff was allowed, the judgment and decree of the trial Court were set aside and the suit of the plaintiff was decreed, granting a decree for mandatory injunction directing the defendants to demolish the wall in question within 15 days failing which the plaintiff shall be at liberty to have this wall demolished through the Court.

(2.) Ram Murthi plaintiff had filed a suit for mandatory injunction directing the defendants, namely, Mohinder Singh etc. to demolish the wall raised against the door of the house of the plaintiff and to remove other building material from the way to the house of the plaintiff and also sought a decree for permanent injunction restraining the defendants from raising the wall or any further construction on the way to the plaintiff's house. It was alleged that the plaintiff was the owner of the house shown in green in the site plan attached with the plaint and that it was ancestral house since the times immemorial and the plaintiff was discharging the daily used water through the passage shown red in the site plan and even the natural flow of the water is through the said passage. It was alleged that the defendants had occupied and constructed a wall shown as AB in the site plan towards the west of the plaintiff's house and against the said door and the defendants were bent upon to raise further construction thereon even though the defendants had no right, whatsoever, to raise any construction on the way to the plaintiff's house or to raise the aforesaid wall. It was alleged that the said wall had closed the door to the plaintiff's house and also the natural flow of the water of the house of the plaintiff, which stands completely blocked by the aforesaid wall, raised by the defendants. It was accordingly prayed that decree for mandatory injunction as also for permanent injunction, as referred to above be passed against the defendants.

(3.) In the written statement filed by the defendants various allegations made in the plaint were denied and it was alleged that the plaintiff had constructed the house only a few years back and that the disputed property was never used as a passage by the plaintiff at any time. It was alleged that there was no door of the house of the plaintiff opening towards the disputed property and no water ever passed through the disputed property. It was alleged that the door of the plaintiff's house opened towards the other side in the street and the water of the house of the plaintiff also flows towards the said street. It was alleged that only the back side of the house abuts the property in dispute. It was alleged that the disputed property along with some other property was in possession of the defendants and that originally property was the property of Punjab Wakf Board and the defendants had become the owner thereof by way of adverse possession being in possession thereof over the last 30 years. It was alleged that the defendants had raised the wall in question in their own property and within their own right. It was alleged that at the time of the construction of the said wall, there was no door opening of the plaintiff's house. It was alleged that the defendant had every right to raise the construction in the disputed property and the plaintiff had no right to oppose 'the same. It was further alleged that since there was no door of the house of the plaintiff, there was no question of any blockade in respect of the water of the house of the plaintiff. Accordingly, it was prayed that the suit be dismissed.