RAGHU NATH Vs. SHIV RAM AND ANR

JUDGEMENT

(1.) The appellant is the defendant, who having lost before both the learned courts below, has filed the instant appeal.

(2.) The brief facts giving rise to the present appeal are that the plaintiffs filed a suit for permanent prohibitory and mandatory injunction against the defendant on the allegations that the house of plaintiff No.1 was existing over the land comprised in khewat No.542, Khatauni No. 885 bearing Khasra Nos.955, 956 and 963 kita 3, measuring 28.485 sq.mts for the last forty years, whereas house of plaintiff No.2 was existing over the land comprised in khewat No.543, Khatauni No.886, bearing khasra Nos. 952 and 953 kita 2 measuring 67.985 sq.mts, in Mauza Samkhetar, Mandi Town, Tehsil Sadar, District Mandi, H.P. It was averred that the plaintiffs were residing with their family in the said houses and adjacent to their houses, there was a land comprised in khewat No. 25, Khatauni No. 38, bearing khasra Nos. 954, 965, 966, 967, 968, 969 and 970 kita-7, measuring 268.80 sq. mts. and the windows of the houses of the plaintiffs were existing towards the said land owned by the defendant and others. It was further averred that the plaintiffs had been in peaceful enjoyment of right of sunlight and air to their houses from the suit land for the last more than 40 years uninterruptedly as an easementary right. However, defendant since second week of December, 2009 forcibly started raising construction of his house/super structure, without obtaining requisite permission from the Municipal Council and Town and Country Planning Department, contiguous to the windows of the houses of the plaintiffs in such a manner that it would permanently block the beneficial and permanent use of sunlight and air to their houses. Even though the defendant was requested to raise any construction, but he turned deaf ear to the request so made. Hence, the suit.

(3.) The defendant contested the suit by filing written statement taking therein preliminary objections regarding maintainability, estoppel, non-joinder and mis-joinder of necessary parties, evaluation and jurisdiction. On merits, he alleged that his house was already existing over the suit land and no new construction was in fact being carried out and even the construction so carried out was much prior to the filing of the suit, therefore, there is no question of peaceful enjoyment of sunlight and air to the houses of the plaintiffs being blocked in any manner. It was further averred that he had only repaired the old structure by uprooting the roof and laying slab which had been done more than five years back from the date of filing of the suit and as such there was no question of getting approved sanction map from Municipal Committee and Town and Country Planning Department. Accordingly, he prayed for dismissal of the suit.