BHOORAMAL Vs. GOVIND DEV

JUDGEMENT

(1.) THIS is plaintiff's second appeal arising out of a suit for perpetual injunction instituted by them in the Court of Civil Judge, Neem -ka Thana on 14. 7. 1960 with a prayer that the defendants may be restrained from raising any construction on a piece of land lying contiguous to the plaintiff's house situated in the village Neem -ka -Thana.

(2.) IT appears that the village Neem -ka -Thana was a Jagir village of Bhomiyas Baldeo Singh. Bhoor Singh, Than Singh, Sanwat Singh and Narain Singh, who agreed to sell the land in question which is a small piece of land measuring about 210 sq ft. lying between the public road and the house of the plaintiff for Rs. 50/ - but did not execute a sale deed in the defendant Govind Deo's favour nor handed over the possession of the same to him. Consequently Govind Deo filed a suit for specific performance against the aforesaid Bhomiyas in the Court of Civil Judge, Neem -ka -Thana, which was registered as Civil Suit No. 207 of 1957 and obtained an exparte decree on 24.4.1958 against them for executing of the sale deed in the plaintiff's favour. It further appears that the Bhomiyas did not execute the sale deed as directed by the decree and consequently the sale deed was executed by the Court itself on behalf of the vendors on 30.1.1960, and was registered on 3.3.1960. A certified copy of the exparte decree has been placed on the record and marked Ex. A. 1 and so also a copy of the sale deed marked Ex. A. 2. After the registration of the sale deed the plaintiffs were put in possession of the land on 13. 7. 1960 by the officers of the court and a memorandum of handing over possession of the land was got prepared a copy of which has been placed on the record and marked Ex. A 3 Having thus perfected their title to the land in question, the defendants started collecting building material in order to raise construction on it and this gave rise to the plaintiffs suit the plaintiffs case was that this land constituted a part of the way 'Rasta Chouk', and the plaintiffs have been using this land as passage for more than 20 years and thus have acquired a right of easement in respect of this land 'Hakook Estfayda Hq Aasyees'. It was also stated that the water flowing through the plaintiffs' 'Nala' passes over this land. The plaintiff further alleged that their varandah abuts on this land and if the defendants are allowed to raise construction on it, the frontage of their house would be spoiled and they would also be deprived of free access to light and air which they have been receiving in their house ever since its construction. The plaintiffs also filed a plan along with the plaint and it has been marked Ex. A. 1 in which the disputed land has been shown with a boundary in red ink. The defendants denied the plaintiffs' right to get them restrained from raising a construction on the land in question and placed that out of many doors windows and apertures existing in the plaintiffs' house only one door opens on the land in question and therefore there would be no dimunition of light and air to the plaintiffs' house by their construction on the land in dispute. They pleaded that the plaintiffs' house had been existing for the last 14 to 15 years only and they had not acquired any right of easement for passage, light and air as pleaded by them.

(3.) DIS -satisfied with the judgment and decree of the trial court the plaintiffs filed appeal in the Court of District Judge, Jhunjhunu but were unsuccessful and have consequently come to this Court in second appeal.