MANILAL Vs. VINAY SINGH

JUDGEMENT

(1.) THIS is defendant's second appeal in a suit for declaration and mandatory injunction.

(2.) THE plaintiff's case is that the houses of the parties are situated at Banswara adjoining to each other. The house of the defendant is to wards the north -east of the plaintiff's house. In a previous suit between the plaintiff's father and Kastoorchand the predecessor -in - interest of the defendant, a compromise was arrived at between the parties to that suit and it was agreed that the plaintiff's father would be allowed to rest the rafters, pat etc. of his bouse In the western wall of the defendant's house and that Kastoorchand would be allowed to construct only one window (Ventilator) towards the 'marh' (shed) and that Kastoorchand would not be permitted to construct more than one window or ventilator in the western wall of his house. On the basis of that compromise, a decree was passed in favcur of the plaintiff's father, a copy of which is on record as Ex. 4 A copy of the compromise application dated December 15, 1932 filed by the plaintiff's father and Kastoorcband in the previous suit has alto been place a on record and marked Ex. 3 The plaintiff has further submitted that Kastocrohand sold his house to the present defendant and alter (sic) asing the seme. the defendant in the month of July, 1962 during the plaintiff's absence opened two ventilators and two drains in the western wall of his house towards 'the plaintiff's' math' and has also constructed a'chhaja' 11/2 wide and 11/2 long. The plaintiff complained that the dtfendant had no right to open the atoresid apertures nor be could have constructed the -'chhaja', and, therefore, he filed the suit in the court of Munsiff, (sic) on dated 17 -10 -1962 praying that a mandatory injurction be issued to the defendant directing him to close the ventilators and the spouts and to demclish the 'chhaja' constructed by the defendant. He further prayed that a declaration be made that he has a right to place his rafters on the Western wall of the defendant's house and a permanent injunction beissued restraining the defendant from opening any fresh apertures or making any constructions to werds the western wall of the defendant's house

(3.) THE defendant filed an appeal before the Senior Civil Judge, Banswara who partly allowed the appeal by his judgment dated 1 -8 -66. The learned Senior Civil Judge came to the conclusion that one of the ventilators was constructed by the defendant in place of his old window and that the ventilators and the spouts were constructed by the defendant in June. 1962 in the presence of the plaintiff and as the plaintiff did not raise any objection at the time of the opening of the aforesaid apertures he was guilty of laches and would be considered to have waived his right to get the said apertures closed. He, therefore, modified the decree passed by the learned Munsif and dismissed the plaintiff's suit in respect of the ventilators and the spouts As regards the decree for the dernolition of the chhaja' (petit roof) the learned Senior Civil Judge directed that the trial Court's decree would be maintained in respect there of except over the place of the old window. The declaratory decree granted in favour of the plaintiff in respect of resting the raftars and 'pat' of the plaintiff house in the western wall of the defendant's house and regarding the construction of marh was also maintained.