DULICHAND Vs. BHAIRONDAS

JUDGEMENT

(1.) THIS second appeal arises out of a suit instituted by Meghraj on 26-2-1960 in the Court of Munsif, Bikaner. for a perpetual injunction and for recovery of damages. During the pendency of the suit, Meghrai plaintiff died and his son dulichand came on record to continue the suit. His two daughters Mst. Bhanwari and Mst, Chanwari were impleaded as defendants Nos. 6 and 7. The plaintiff has a house in Mothalla Surana in the city of Bikaner. Towards the east of the plaintiff's house, the house of the defendant Bhairondan and his three brothers is situated. All the four brothers are defendants Nos. 1 to 4. Municipal Council. Bikaner is defendant No. 5. Towards the north of the house of the plaintiff and that of the defendants is a 'gali' and is admittedly a public lane.

(2.) THE allegations of the plaintiff in the suit are that the defendants have constructed a projection at the height of 9 feet 10 inches towards the 'gali' extending to 3 feet. The projection is in the form of a balcony and is 9 feet in length on the first floor of the defendants' house. This has been shown as 'a' in the map Ex. 3 filed with the plaint The plain-tiff's averment in this regard is that on account of the construction of the balcony, the beauty of his house has been substantially marred and anyone in his house is not able to see the 'rasta'. It has not been clarified which 'rasta' the [plaintiff refers to. Even in the map Ex. 3, the 'rasta' referred to has not been shown. Another averment of the plaintiff is that the defendants got constructed a flush latrine in the north-west corner of their house on the first floor. This has been shown as 'b' in the map Ex. 3. The plaintiff also made a grievance for (the pipe C to D put up by the defendants to carry the urine and dirty water (from the second floor. Yet another grievance made by the plaintiff is about the construction of a soak pit in the lane and which has been shown as 'e' in the map Ex. 3. It was alleged by him that on account of the soak pit the lane has been narrowed down. The plaintiff also alleged that constructions 'f'. 'g' and 'h' were also made by the defendants in their house after having damaged Ms wall and In respect of that he claimed damages in the amount of Rs. 100/ -. The plaintiff proceeded to say that all these constructions were made by the defendants without the permission of the Municipal Council. Bikaner. He apprehended that they are likely to compose the matter with the Municipal council. He accordingly prayed for the demolition of the projection 'a', the closure and removal of the pipe line CD and the constructions 'b', 'e' and 'f' and further prayed for a perpetual injunction restraining the defendants from making such further construction. Against the Municipal Council it was prayed that it be restrained from making any compromise with the defendants with regard to these constructions.

(3.) DEFENDANTS Nos. 1 to 4 contested the suit. By their joint written statement dated 8-4-1960 it was admitted that a balcony was constructed by them at a height of about 10 ft. from the ground in the first floor of the house, but it was averred that it did not impair the beauty of the plaintiff's house, nor did it infringe any of the plaintiff's rights. As regards the flush latrine, it was alleged that it was constructed in their house and the soak pit was under the staircase outside the, house but in their Patta Sud land. The soak pit did not narrow the lane. As regards the urinal and the two pipes C to D it was stated that they did not construct any urinal and the two pipes C to D put up by them in second floor of the house were only meant to carry the rain water. As regards the constructions F. G. and H, it was alleged that they were made in their house and no damage was caused to the plaintiff's property. These constructions according to the defendants, were made at a distance of 8 inches from the plaintiff's house and as such, they were not entitled to any damages.