BHAGWAN SINGH Vs. KALU

JUDGEMENT

(1.) BHAGWAN Singh, Plaintiff -Appellant, and Kallu, Defendant -Respondent (now deceased are residents of village Tankri, tehsil Rewari, district Gurgaon, where they own residential houses. The location of their houses is shown in the plan Exhibit P.W. 1/1. There is a passage leading to the house of Bhagwan Singh which passes in front of the house of Kallu. Kallu constructed a Chabutra on a part of the open space in front of his house, shown as R. 2, R. 3, R. 4 and R. 10 and dug foundation in the remaining open space shown as R. 1, R. 8, R. 9 and R. 4 in the plan Exhibit P.W. 1/1. Bhagwan Singh, feeling aggrieved by this construction, filed a suit for mandatory injunction against Kallu, alleging therein that the open space in front of the house of Kallu, over which the Chabutra has been constructed and the boundary wall was proposed to be constructed, was part of a thoroughfare leading to his house and, therefore, Kallu had no right to raise the construction. This suit was decreed by Shri (Jaspal Singh, Subordinate Judge 1st Class, Rewari vide order dated October 15, 1966, and a permanent injunction was issued against Kallu Defendant restraining him from making any construction in the portion marked R. 1, R.. 8, R. 9 and R. 4 and further directing him to demolish the Chabutra marked R. 2, R. 3, R. 4 and R. 10 in the plan Exhibit P.W. 1/1. Aggrieved against that decree, Kallu filed an appeal and the same was disposed of by the learned Additional District Judge, Gurgaon vide order dated November 24, 1987. The learned lower appellate Court maintained the decree of the trial Court to the extent that Kallu Defendant will not make any construction on the site shown by letters R. 4, R. 9, R. 8 and R. 11. The claim of Bhagwan Singh Plaintiff regarding the remaining part of the site including the Chabutra marked R. 2, R. 3, R. 4 and R. 10 was disallowed and as such the decree of the trial Court to that extent was set aside. It is against this order that the present appeal is directed by Bhagwan Singh.

(2.) KALLU Defendant Respondent died about nine months back and his legal representatives have not been brought on the record. No application has been moved for impleading them as party to the litigation. Under these circumstances, Shri D. C. Ahluwalia, Advocate, who represented Kallu during his lifetime, was desired to appear amicus curiae.

(3.) IN the result, I hold that the death of Kallu Defendant -Respondent shall not abate the present appeal.