MANZOOR HUSSAIN Vs. OM PARKASH

JUDGEMENT

(1.) This second civil appeal is directed against a judgment and decree passed by District Judge, Udhampur on 17-5-1995. The impugned judgment and decree has reversed the judgment and decree of Munsiff (District Mobile Magistrate)Udhampur passed on 22-11-1989.

(2.) The facts in brief are that the predecessor-in-interest of the appellant filed a suit for permanent injunction for restraining the predecessor-in-interest of respondent (Krishan Dass) from interfering into 8 feet wide common lane existing between the houses of the parties and from raising any construction on this lane, so as to deprive them of their right to light, air and passage of water. Similarly a relief was prayed against the defendant restraining him from dumping his 'Malba' in the lane. Suit was filed on 16-11-1979. In the written statement the defendant denied existence of any lane. The factum of existence of any pipeline through that lane was also denied. The trial Court on the pleadings of the parties framed following issues :-

(3.) The trial Court, on the strength of evidence on record, decided issues Nos. 1 and 2 in favour of the plaintiff and decreed the suit. As a result a mandatory injunction in favour of the plaintiff and against the defendant was passed commanding the defendant to remove all the debris accumulated along side the house in the lane existing towards east of the house of the plaintiff and also allowed the plaintiff to enjoy and use the said lane 'Gali' as a thoroughfare and not to interfere his right to light and air through that lane. A perpetual injunction was also granted restraining the defendant from obstructing the flow of water etc. etc.