MANGI LAL Vs. ONKAR LAL

JUDGEMENT

(1.) This appeal by the defendants against the judgment of the trial court dated 29.8.1979 and dismissal of the appeal by the appellate court by the judgment and decree dated 13.8.1982. Brief facts of the case are that respondent-plaintiff filed the suit for mandatory and prohibitory injunction against the appellantsdefendants alleging that the suit property was partitioned between the plaintiff and defendant no.1 by registered partition deed dated 30.11.60. Since both the parties are in occupation of the property as it fell in the share of the parties and are enjoying the benefit of common portion left for the beneficial use of the properties for both the parties. The plaintiff claimed that the defendants-appellants constructed septictank for their latrine on the land shown in red colour in map Ex.1, which according to the plaintiff came in the share of the plaintiff-respondent.

(2.) It is also stated that after leaving the passage of 2'6" in front of latrine, the defendants have constructed pukka bath room of 4'x8" in length and 4'x10" in the width on the northern side of the latrine. The defendants also covered bath-room and passage by placing roof on it and placed shed on the exit of bath room and that shed has gone one feet inside below the tin-shed of plaintiff over Verandah. It is also stated that the defendants dig pits on the land belonging to the plaintiff. The plaintiff raised grievance ac according to the plaintiff, the plaintiff's air and light has been obstructed by the act of the defendants. However, it is was not disputed, rather admitted case of the plaintiff that as per the partition-deed dated 30.11.1960 itself, the defendants were entitled to construct bath-room in accordance the terms of the partition-deed on the land on the southern side of the latrine which was already in existence. The plaintiff claimed that the constructions raised by the defendants were wholly illegal and violated the plaintiff's right to enjoy the property, therefore, the defendants be directed to remove the structures which they have raised effecting the plaintiff's rights and which were in violation to the terms contained in the partition-deed dated 30.11.1960.

(3.) The defendants-appellants contested the suit and submitted written statement. The defendants admitted the fact of partition and the execution of the partition deed dated 30.11.1960. The defendants denied that they ever dig pits to obstruct the plaintiff from enjoying the property. The defendants claimed that they constructed bath-room but it is on their own land and the septic-tank underneath the bathroom is also constructed by them as they have right to construct the septic-tank also under the bath-room. It is also submitted that all the constructions which were raised, were in the knowledge of the plaintiff and the plaintiff also gave his consent, obviously implied, for the construction as it was in accordance with the terms and condition of the partition-deed dated 30.11.1960. The defendants also stated that he denied the placing of shed on the existing bath-room and it is submitted that only Rosh (balcony) has been constructed by them. The defendants submitted that the bath-room has been constructed on 27.75 sq.ft. leaving passage of 11 sq.ft. Thus the area of bath-room is much less than the area of the latrine and in the partition-deed dated 30.11.1960, it is clearly mentioned that the defendants shall have right to construct latrine/bath-room equal to the measurement of the existing latrine. The defendants also placed on record map Ex.1, which according to the defendants was prepared along with the partition-deed dated 30.11.1960 and which bears the signatures of the plaintiff and defendant no.1. Any obstruction and air and light was empathically denied by the defendants and the defendants prayed that the suit of plaintiff be dismissed.