MURLIDHAR Vs. PRAKASH CHANDRA KASLIWAL

JUDGEMENT

(1.) Instant second appeal under Sec. 100 CPC arises out of a civil suit filed for seeking prohibitory and mandatory injunction, way back on 9/10/1963, in relation to a portion of roof, situated in the property, commonly known as "Purohit Ji Ka Katla", Chowkri Vishveshwar Ji, Johri Bazar, Jaipur. The suit was instituted by plaintiff-Prakash Chandra Kasliwal, against two persons namely Purohit Swaroop Narain and Murlidhar who were made parties as defendant Nos. 1 and 2. Plaintiff claimed that on the portion of roof, purchased by him, defendant No. 2 has constructed a wall of 37 ft. long from north to south and up to 7 ft. height thereby has pressed an area of his roof, towards northern side of wall, mark 'A', 1.5 ft. and towards southern side of wall mark 'B' 8 inch. The plaintiff prayed for, to obtain possession of such area of his roof, which has been encroached upon by defendant No. 2, while raising construction of wall in question and thus, a decree for prohibitory injunction not to raise any construction on his roof and for mandatory injunction seeking demolition of wall in question has prayed for. Defendant No. 1 supported the plaintiff's suit and defendant No. 2 contested the same. The suit bearing No. 16/77(501/1963) was partially decreed vide judgment dtd. 30/9/1983 by the Court of Additional Civil Judge No. 2 Jaipur City, Jaipur and thereby defendants were restrained by prohibitory injunction not to raise any construction over the roof of plaintiff and not to obstruct the plaintiff from use and occupation of the roof in question but the suit for seeking mandatory injunction, to demolish the wall in question was dismissed being barred by limitation as well as the area of roof come under the wall is very small and negligible. The trial court also observed in the operative portion of judgment that right of defendant No. 2 for coming and going to temple through staircase and roof in question will remain intact.

(2.) During trial of suit, plaintiff-Prakash Chand Kasliwal sold the roof in question to one Raj Kumar Sethi through sale deed dtd. 13/2/1968, therefore, purchaser-Raj Kumar Sethi was also allowed to be impleaded as plaintiff No. 1/1 with plaintiff No. 1-Prakash Chandra Kasliwal.

(3.) Plaintiff No. 1/1-Raj Kumar Sethi, the subsequent purchaser, who was added as party, alone preferred first appeal No. 1/1984, challenging the judgment dtd. 30/9/1983 to the extent of dismissing the suit for mandatory injunction and to the extent of the order passed by trial court to keep intact, the right of way of defendant No. 2, for coming and going to the temple premises through the roof in question. The defendant No. 1, was not aggrieved by the judgment and decree of trial court dtd. 30/9/1983, he did not preferred any appeal there against. Defendant No. 2-Murlidhar preferred his separate first appeal No. 2/1984 challenging the judgment and decree dtd. 30/9/1983, to the extent of passing a decree for prohibitory injunction in respect of the roof in question in favour of plaintiff.