MAKHAN SINGH Vs. JAN

JUDGEMENT

(1.) The plaintiff-appellant filed a suit in which a decree of mandatory injunction seeking a direction to compel the defendants-respondents to dismantle the wall raised by him on the lintel of their house and also to dismantle the lintel projecting towards the Municipal lane was filed. A mandatory injunction was also sought calling upon the defendants to clear the debris from the Municipal lane and also the drain so that there is free flow of water. It was pleaded in the suit that the plaintiff is the exclusive owner of one kanal five marlas of land in survey No.1556 and 1563 within the Municipal limits of Poonch. It was pleaded that a plot situate in between two lanes forms the site of defendant s house which he had purchased from one Shanti Saroop. It was pleaded that the defendants renovated the house and replaced its Kacha roof by a concrete lintel. This lintel has been projected towards the plaintiff s land on Northern side of his house by 6 inches and four feet high wall has been raised. It was pleaded that this construction was raised without obtaining the permission from the Municipal Committee. It was further pleaded that debris have been dumped in the Municipal lane. This had obstructed the free flow of water from the plaintiff s house. As per the plaintiff he has an easementary right to discharge the water from his land through the drain and this could not be obstructed. As per the plaintiff he was exercising the easementary right for over 40 years. The defendant/respondent filed the written statement. His plea was simple. He stated that a projection of 6" has been raised, but this is not towards the plaintiff s land, but this projects towards the Municipal lane. The defendants accordingly pleaded that the projection, if any, is on the Municipal lane. The pleadings of the parties led to the framing of the following issues :

(2.) . After recording the aforementioned findings the suit of the plaintiff was dismissed on the ground that there was a delay of six months and 17 days. The fact that no sanction was obtained from the Municipality was found to be a factor which stood compounded by the Municipal Authorities. In these premises, the suit came to be dismissed. The appeal preferred also stands dismissed. Now this second appeal has been preferred. The substantial questions of law which have been formulated by this Court are as under :

(3.) The evidence in the shape of the report of Mohd. Younus, which is EXPW-Y is dated 02-12-1989. For facility of reference, this is being reproduced below :