ACHHAR SINGH Vs. PRITOO

JUDGEMENT

(1.) This second appeal is brought from the decision of the District Judge, Patiala (erstwhile Pepsu State), reversing on appeal a decision of the Sub -Judge First Class, Kandaghat whereby a suit filed by Achhar Singh for possession and mandatory injunction was decreed. Achhar Singh came to Court with the allegations, that his house lies adjacent to the house of Pritoo and the latter had opened two windows and one drain towards his courtyard. The two windows infringed his right of privacy while the drain caused additional burden over the land by discharge of water over his courtyard. Achhar Singh further alleged that the Defendant Pritoo straightened his western wall and encroached at two places, 19 1/2 sq. ft. at one place and 5 1/2 sq. ft. at another place, on the Plaintiff's land. Thus a suit for possession over the encroached land and mandatory injunction for the closure of the two windows, drain and also removal of a water cistern overhanging towards the Plaintiff's site was filed.

(2.) The defence of Pritoo was that the windows and the drain were in existence from the last 50 years and he acquired a right of easement by prescription in respect thereof. As regards encroachment, it was denied that any encroachment was committed by the Defendant. Similarly it was denied that the water cistern was over -hanging towards the Plaintiff's land or could be removed by the Plaintiff. The learned Sub -Judge First Class found in favour of the Plaintiff so far as the two windows and the drain were concerned and decreed the suit in respect thereof. However, he dismissed the suit for possession over the land said to be encroached upon. The Plaintiff did not appeal against the dismissal of the suit for possession and to that extent the decree became final. However, the Defendant appealed against the decree of mandatory injunction asking for the closure of the two windows and the drain. The first Appellate Judge, although found that the two windows and the drain were recent constructions and were not there from 50 years or even 20 years, yet dismissed the suit because according to him the Plaintiff could not ask for the closure of the apertures, namely the two windows which he constructed in his own wall and according to the learned District Judge everybody was free to make apertures in his wall and no exception could be taken by the Plaintiff. He relied upon Kashi Math and Ors. v/s. Ram Jiwan and Ors., A.I.R. 1933 Lah 847 and dismissed the suit.

(3.) The Plaintiff filed this second appeal which has landed in this Court after a chequered career both in Punjab High Court and in Delhi High Court.