AMAR NATH Vs. JAGAT SINGH

JUDGEMENT

(1.) THIS appeal has been directed against the judgment, decree dated 27-12-1997 passed by the learned Additional district Judge, Shimla in Civil Appeal No. 38-S/13 of 1993 setting aside the judgment, decree dated 30-4-1993 passed by the learned Sub-Judge 1st Class (II), Rohru in case No. 84/1 of 1988/50-1 of 1991.

(2.) THE appellant No. 1 was plaintiff and appellants 2 to 4 were proforma defendants and respondents No. 1, 2 were defendants no. 1, 2 in the suit filed for permanent prohibitory injunction. The pleaded case of the appellant No. 1 is that he and appellants No. 2 to 4 had constructed 4 storeyed building on Khasra Nos. 415, 416 and 419, Chak mohal, N. A. C. Rohru in the year 1960. In the year 1987, the respondents No. 1, 2 purchased land comprised in khasra Nos. 393 and 394 from previous owners Salmoo etc. and in August, 1987 they constructed a single storey house. The land comprised in khasra No. 393 adjoins to the land comprised in Khasra Nos. 416 and 419. The respondents No. 1 and 2 while raising construction on Khasra Nos. 393 and 394 had left a space of about 8/9 inches between the walls towards the building of appellant No. 1. The respondents have encroached upon the land of the son of appellant No. 1. the storey at ground level of the house of respondents does not affect appellant's building excepted that the respondents No. 1, 2 have encroached a portion of land of appellant No. 1. It has been alleged that second, third and fourth storeys of the respondents house would irreparably affect the house of appellants in as much as the light and air of one window of the second storey, one door and one window of the third storey and one door and two windows of the fourth storey would be completely obstructed and the concerned rooms will become completely dark.

(3.) THE further case of the appellant No. 1 is that respondents have no right to obstruct the light and air of the building of the appellants. The building of appellant No. 1 was constructed in the year 1960 and he had been enjoying the aforesaid right without any obstruction. The flush pipe fitted from the fourth floor of appellant No. 1 building has been obstructed by respondents by erecting a wall over the encroached land. There is no outlet for the sewerage water which has caused imminent danger to the building of the appellant No. 1 due to the blockade of the discharge pipes. The appellants No. 2 to 4 are the co-sharers of appellant No. 1 in the building. In the plaint, the pleaded cause of action is of 22-2-1988 when respondents threatened to raise construction of second storey of their house. It has also been pleaded that about 10 days ago from the filing of the suit, the respondents had blocked the flow of aforesaid flush pipes of the building of appellant No. 1. On these facts, the appellant No. 1 had prayed for permanent prohibitory injunction against the respondents No. 1, 2 from raising construction on Khasra Nos. 393 and 394. A prayer for mandatory injunction was also made to allow the flow of flush pipe water of appellant No. 1 building which has been obstructed by respondents No. 1, 2.