YOGESHWAR LAL Vs. RAJESH KUMAR

JUDGEMENT

(1.) THIS Regular Second Appeal has been filed by the plaintiffs ­ appellants, against the judgment and decree dated 6.10.2005 passed by the District Judge, whereby the appeal filed by the defendants was allowed, the judgment and decree of the trial Court were set aside and the suit of the plaintiffs was dismissed.

(2.) THE facts which are relevant for the decision of the present appeal are that the plaintiffs had filed a suit for permanent prohibitory and mandatory injunction against the defendants, with the allegations that the plaintiffs have a shop over the land detailed in the plaint, which was owned and possessed by the plaintiffs and that the defendants have no right, title or interest in respect of the said land/property. It was alleged that the defendants started digging the land adjacent to the wall of the plaintiffs which is 13 feet in length and 2 feet in width. It was alleged that if the digging work by the defendants was not stopped, the said wall of the house of the plaintiffs was likely to fall and thereby the shop of the plaintiffs would also fall. It was alleged that the defendants were asked not to dig the land beneath the wall of the plaintiffs and not to cause damage to the said wall, but of no avail. It was accordingly prayed that the defendants be restrained from doing digging work near the wall of the plaintiffs and not to cause any damage to the said wall of the plaintiffs. In the alternative, it was prayed that in case the defendants pull down the wall and raise any construction or structure over the suit land, the same be got demolished and possession be restored to the plaintiffs.

(3.) AFTER hearing both sides and perusing the record, the learned trial Court decreed the suit of the plaintiffs and a decree for injunction was passed restraining the defendants from conducting any digging over the suit land beneath the eaves touching the wall of the shop of the plaintiffs. Aggrieved against the same, the defendants filed appeal. The learned District Judge, after hearing both sides and perusing the record, accepted the appeal of the defendants, set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiffs. Aggrieved against the same, the plaintiffs filed the present Regular Second Appeal in this Court.