PHOOL CHAND Vs. PRAHLAD & ANR

JUDGEMENT

(1.) The present second appeal has been filed by the appellant-defendant under Section 100 of CPC, challenging the judgment and decree dated 06.11.2008 passed by the District & Sessions Judge, Sawai Madhopur (hereinafter referred to as "the appellate court") in first appeal No.34/1999, whereby the appellate court has dismissed the appeal and confirmed the judgment and decree passed by the Additional Civil Judge (Senior Division) Sawai Madhopur (hereinafter referred to as "the trial court") in Civil Suit No.30/1997.

(2.) The respondents-plaintiffs had filed the suit seeking declaration and permanent injunction in respect of the easementary rights over the common chowk being used by both the parties alleging interalia that the appellant-defendant had illegally constructed the balcony, on the first floor abutting on the said common chowk, and the defendant was also putting up construction of the balcony on the second floor obstructing the easementry rights of light and air of the plaintiffs. It was also alleged that the appellant-defendant had created nuisance by opening pipe lines in the common chowk. The respondents-plaintiffs, therefore, had filed the suit seeking declaration of their easementary rights of getting light and air in respect of the said common chowk and also sought permanent injunction restraining the defendants from putting up any balcony or any kind of construction causing obstruction to the easementary rights of the plaintiffs. The said suit was resisted by the appellant-defendant contending interalia that the house in question of which the disputed balcony was constructed, was purchased by him from the plaintiffs only and that the defendant had right to put up the balcony abutting on the common chowk.

(3.) The trial court from the pleadings of the parties had framed as many as 7 issues and after appreciating the evidence on record had decreed the suit vide the judgment and decree dated 26.03.1999. Being aggrieved by the same, the appellant had preferred the first appeal before the appellate court, which has been dismissed vide the impugned judgment & decree, against which the present second appeal has been filed.