KAILASH Vs. GEETA DEVI SHARMA

JUDGEMENT

(1.) THIS is an appeal from concurrent decrees and findings of fact directed against the judgment and decree of the learned Additional Civil Judge (Senior Division), Mohindergarh dated 4th September, 2009 as affirmed by the learned ADJ, Mohindergarh on 21st January, 2011 in first appellate decree.

(2.) THE facts are that the plaintiff brought a suit for permanent injunction against the respondents claiming easementary right of free air and light in the building owned by her through her father -in -law with his family residing in suit premises for over a 100 years situated in Mohalla Nimri Niche in Mohindergarh Town of Haryana. The dispute is with respect to the existence or non -existence of 7 ventilators in the ground floor of the building and two ventilators on the first floor facing a street, Rasta -eShaream separating the building by a street which is 71 feet and 3 inches in length and 3 feet 3 inches wide passing from East to West. The building is old and made of small bricks and lime mortar. She alleged in the plaint that the defendants are powerful persons who are adamant in encroaching on the Rasta -e -Shaream shown in pink colour in the site plan and intend to raise construction on rasta so as to cause the closing of the ventilators existing in the southern wall of the house of the plaintiff denying the plaintiff of her easementary rights to natural light and air. In case, they succeed, she would lose free access to her of air and light which would impair enjoyment of her property which benefit she has had from time immemorial. The suit for permanent injunction sought restraining the defendants -appellants from closing the ventilators on the southern wall of the house of the plaintiff. In case, the defendants succeeded in encroaching upon the street and closing the ventilators, then a decree of mandatory injunction was sought to restore the property to its original position.

(3.) THE defendants contested the suit and denied ownership of the property claimed by the plaintiff to be a Haveli. The correctness of the site plan was disputed. They pleaded that plaintiff was not the owner of house bearing No.B -III -3S -314. The owner of the property in the record of the Municipal Committee is Chanderdutt son of Devi Sahai according to house tax assessment register for the year 1981 -82. Chanderdutt is plaintiff's father -in -law. He was survived by Ramdutt and Laxman. They are still alive. Therefore, the plaintiff has no concern with the disputed property. If she has got her name entered in the Municipal record, then it is not binding on the rights of the defendants. The defendants denied existence of the street itself.