GH MOHD PHALWAN Vs. AZIZ SHEIKH

JUDGEMENT

(1.) THIS is the plaintiffs second appeal and is directed against the judgment and decree of the Sub Judge Chief Judicial Magistrate Srinagar dated 30th of July 1973 setting aside the judgment and decree of the Ist Addl. Munsiff Srinagar and dismissing the suit of the plaintiff for mandatory injunction.

(2.) BRIEFLY speaking the facts of the case as disclosed from the pleadings of the parties are: The plaintiff owned two storeyed house which was contiguous to the defendants three storeyed house, The defendants projected three windows on the 3rd storey of their house and also eaves drops to awards the compound of the plaintiff after the latter had removed his Dewankhana and had annexed the land beneath the said Dewankhana with his lawn. The defendants, the plaintiff averred, reconstructed the wall of their house towards the compound of the plaintiff and by opening the three windows on the side of the plaintiffs land invaded his right of privacy. The defendants case on the other hand was that the windows and the eaves drops were already present in their house for the last 100 years and that the windows were not fixed recently, that there was no custom of privacy observed in the locality. The trial court of 1st Addl, Munsiff Srinagar raised the following issues in the case: - 1. Whether the defendants have fixed three windows in the third storey of their house opening towards the plaintiffs compound recently and have kept Kend -sari on the compound of the plaintiff ? O. P. P. 2. Whether the Kendsari and windows were fixed in the house of the defendants for the last more than 100 years ? O. P. D.

(3.) WHETHER the suit is not maintainable in the present form ? O. P. D.