DINA NATH (DECEASED) Vs. RAM NATH

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment of the Sub-Judge 1st Class, Phagwara dated 30.11.1979 passed in Suit No. 76 of 10.2.1977 whereby the suit filed by the petitioner has been partly dismissed and the judgment of the Additional District Judge, Kapurthala given in Civil Appeal No. 1 of 4.1.1980 No. 71 of 1.7.1981, decided on 5.3.1983, affirming the judgment of the trial Court and dismissing the appeal file by the plaintiff.

(2.) The plaintiff had filed a suit against Ram Nath defendant, seeking possession of land measuring 61 square feet which had been described in the head note of the plaint. The plaintiff also sought the relief of permanent injunction against the defendant restraining him from discharging sullage water towards the house of the plaintiff through the Mori at point M in the site plan except the seasonal water of the upper storey through a pipe.

(3.) Plaintiff and his uncle Sant Ram had earlier filed a suit on 25.8.1966 against one Amar Singh and the present defendant for partition of half share of the property. There was a compromise in the partition of half share of the property. There was a compromise in the suit and a decree for final partition was made on the basis of this compromise. It was directed that defendant Ram Nath would be entitled to raise construction over the portion shown L.M.G.H.J.L. in the site plan in that suit. The measurements of the site being 23' x 25'- 8". Thus the length of the walls JL and MH were to be 23' each while that of walls LM and JH was to be 25'- 8" each. It was also ordered in the compromise decree that the defendant shall discharge water of the upper roof through a pipe or other covering falling at point M in the site plan. The discharge of the water was to be other than the water of lavatory. Further, the case of the plaintiff is that the defendant while allegedly constructing in accordance with the aforesaid decree, included an area of 61 square feet in his building from the adjoining site, which had been given to the plaintiff. According to the plaint, action of the defendant for including the aforesaid area took place about 7 years back. The plaintiff had objected to the construction but the defendant did not take any notice. Hence the suit.