GURMEL SINGH Vs. BIMLA DEVI

JUDGEMENT

(1.) The defendants are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby suit for permanent injunction filed by the plaintiff-respondent for restraining the defendant-appellants from obstructing and closing the Nali on the ground floor; two parnalas at point P-1 & P-2 and window on the first floor, as shown red in the site plan, was decreed in appeal. The plaintiff-respondent filed the present suit for permanent injunction claiming that she is owner in possession of the house having nali; parnalas at points P-1 & P-2 and window on the first floor, as shown in the site plan. The plaintiff asserted that she has been using the house with such facilities for the last 50-60 years since the time the house was built. She claims right of easement. The defendants are said to be residing in the adjoining house and have threatened to close the nali, parnalas and window forcibly.

(2.) The defendants in the written statement asserted that they have never obstructed or threatened to close the two parnalas at point P-1 & P-2 and window on the first floor, but disputed the existence of Nali as shown in the site plan.

(3.) The learned trial Court found that in view of the categorical stand of the defendants that they never intended to close the window and parnalas shown in the site plan Ex.P1, the plaintiff has no cause of action against the defendants to that extent. However, the learned trial Court returned a finding that the defendants have closed Nali before the institution of the suit and, thus, the suit for permanent injunction is not maintainable and that the plaintiff should have filed a suit for mandatory injunction. In appeal against the judgment and decree passed by the learned trial Court, the learned first Appellate Court examined the report of the Local Commissioner dated 16.11.1988 to return a finding that the defendants have closed the Nali from outside and, thus, the plaintiff had made out a case for decree for injunction.