MEHRUNISA Vs. MOHAMMAD SAYEED

JUDGEMENT

(1.) THE present second appeal is directed against the judgment and decree dated 28/3/2012 passed by the District and Sessions Judge, Jaipur District, Jaipur (hereinafter referred to as 'the Appellate Court'), in Appeals No. 80/2006 & 83/2006, whereby the Appellate Court has partly allowed the said appeals arising out of the judgment and decree dated 21/8/2006 passed by the Additional Civil Judge (Junior Division) No. 3, Jaipur District, Jaipur (hereinafter referred to as 'the Trial Court') in Civil Suit No. 50/2001(27/1999).

(2.) THE respondent No. 1 -plaintiff had filed the suit against the appellants and the respondent No. 2 - -defendants, seeking permanent and mandatory injunction against the said defendants alleging inter -alia that the house of the plaintiff was situated at Kasba Chaksu facing West, and the house of the defendants was situated across the house of the plaintiff. It was further alleged that the appellants -defendants had trespassed and started construction of Balcony shown in the map annexed with the plaint and marked as A, B, C, D, E, F, G and H. The said suit was resisted by the appellants -defendants by filing the written -statement denying the allegations, and further contending inter -alia that the said construction was already existing from the time of their ancestors. The respondent No. 2 had also filed the separate written -statement contending inter -alia that the Nagar Palika was taking action against those who were carrying out illegal construction. From the pleadings of the parties, the Trial Court had framed as many as six issues. The Trial Court, after appreciating the evidence on record, partly allowed the suit by directing the appellants -defendants to remove the construction marked as A, B, C, D, E & F in the map annexed to the plaint, within two months, failing which the plaintiff would be entitled to get the said removed at the cost of the appellants -defendants. Since the issue No. 2 was decided against the plaintiff by the Trial Court, the respondent No. 1 -plaintiff as well as the appellants -defendants preferred two separate appeals before the Appellate Court. The Appellate Court allowed the appeal of the respondent No. 1, and dismissed the appeal of the appellants vide the impugned judgment and decree, against which the present second appeal has been preferred by the appellants.

(3.) HAVING regard to the submissions made by the learned counsels for the parties, and to the impugned judgments and decrees passed by courts below, it appears that the Trial Court as well as the Appellate Court has concurrently held after appreciating the evidence on record that the alleged construction of Balcony made by the appellants, marked as A, B, C, D, E and F in the map annexed with the plaint was illegal construction and the appellants had to the said extent made illegal encroachment over the street. Though reliance has been put by the learned counsel Mr. Jain on Bye -laws 12 of the Building Bye -Laws of Municipal Council, Jaipur, same is not helpful to the appellants, inasmuch as it has been specifically provided in the said Bye -Law that the Todas, Balconies, Jharokas, Varandhas and other projections excluding Chajja shall not be allowed or permitted where the distance between the exterior of the proposed projection and centre of the street is less than 4 meters. In the instant case also, the distance between exterior of the projection of Balcony made by the appellants and the Centre of the street being less than 4 meters, such projection was not permissible. There being concurrent findings of facts recorded by both the Courts below as regards the illegal encroachment and projection made by the appellants, this Court is not inclined to interfere with the said findings.