VISHNU KUMAR LOHIYA Vs. SHIVSHANKAR

JUDGEMENT

(1.) This civil second appeal, which is reported to be time barred by 91 days, is accompanied with an application under Sec. 5 of Limitation Act.

(2.) For the reasons stated in the application, the same is allowed. Delay in preferring the second appeal is condoned. This civil second appeal has been preferred by the appellant/defendant (for brevity, "the defendant") against the judgement and decree dtd. 3/3/2020 passed by learned Additional District Judge No.1, Bharatpur (for brevity, "the learned appellate Court") in Civil Regular Appeal No.4/2019 (11/2019) CIS No.11/2019 whereby, while dismissing the appeal, the judgement dtd. 24/12/2018 passed by learned Senior Civil Judge, Bharatpur (for brevity, "the learned trial Court") decreeing the Suit No.73/2016 for permanent injunction, has been upheld. The relevant facts in brief are that the respondents/plaintiffs (for brevity, "the plaintiffs") filed a suit for permanent injunction against the defendant stating therein that they were under ownership and possession of the subject property as described in Para 1 of the plaint situated in Mohalla Mojiram, Behind Old Post Office, Bharatpur which they purchased vide registered sale deed dtd. 18/8/1994 from its erstwhile owner. It was averred that towards its western side, there is a public gali (lane) and thereafter, defendant's house. It was stated that towards the western lane, there exist windows/ventilation of the plaintiffs' house for last about 50 years and they have acquired an easementary right of light and air. Alleging that the defendant wanted to close their windows and ventilation raising construction of a wall abutting their western wall, the decree as aforesaid was prayed for.

(3.) The defendant in his written statement denied existence of any public lane in between the properties of the parties. It was stated that after removing the tin shade existing on the subject land, he has raised certain pucca construction thereon. On the basis of pleadings of the parties, the learned trial Court framed four issues including relief. After recording evidence of the respective parties, the learned trial Court decreed the suit vide its judgement dtd. 24/12/2018 and the civil first appeal preferred thereagainst by the defendant has been dismissed by the learned appellate Court vide its judgement dtd. 3/3/2020.