LILA Vs. PRAKASH CHAND & ORS

JUDGEMENT

(1.) This S.B. Civil second appeal has been preferred by Smt. Lila w/o Tekchand, b/c Oswal, r/o 28, Nehru Nagar, Pali against the judgment and decree dated 04.01.2007 passed by the learned District Judge, Pali in civil appeal No.47/2006 by which he dismissed the appeal filed by the appellant plaintiff and upheld the judgment dated 07.07.2006 passed by the learned Civil Judge (Jr.Divn.) Pali, in civil original suit No.33/2003 by which he dismissed the suit filed by the plaintiff appellant.

(2.) The brief facts giving rise to this second appeal are that the plaintiff appellant filed a suit for permanent and mandatory injunction stating inter alia that she is having a residential house at Plot No.38, Nehru Nagar, Pali and towards the south of her house, there is Plot No.27 belonging to defendant- respondents No.1 and 2. It is alleged that the defendant respondents started raising construction on their plot without permission and without leaving set backs and front side open land as per rules . If the constructions are allowed to be raised, the plaintiff will be deprived of air and light and therefore it was prayed that the defendants be restrained from raising construction. The defendants in their written statement stated that the construction is being raised after obtaining due permission as per rules. On th basis of the pleadings of the parties the learned trial court framed 5 issues and after hearing the parties the learned trial court vide its judgment dated 07.07.2004 decided all the issues against the plaintiff and dismissed the suit, against which the appellant preferred first appeal before the learned District Judge, Pali who vide its judgment dated 04.01. 2007 dismissed the same. Being aggrieved by the aforesaid judgments the appellant has preferred this second appeal.

(3.) Counsel for the appellant contended that the judgment and decree passed by the learned trial court dated 07.07.2006, as affirmed by the learned first appellate court, vide its judgment dated 04.01.2007 are contrary to law and facts and the same deserves to be quashed and set aside and the learned trial court has committed serious error in deciding issue No.1 and 3 against the plaintiff appellant. Counsel for the appellant further contended that the findings recorded by the learned trial court on issue No.1 and 3 are erroneous on the ground that permission was given in the year 1986 and that remained in force for one year only. After the lapse of one year, the permission automatically expires. Therefore, the entire construction raised by the defendants is illegal as the defendants have not left set back as per rules and obstructed the light and air of the plaintiff appellant by raising balcony and windows and the learned trial court misread and misrepresented the evidence available on record.