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Raja Ram and ors. Vs. Bahadur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2003 of 1969
Judge
Reported inAIR1980All115
ActsLimitation Act, 1963 - Schedule - Article 113
AppellantRaja Ram and ors.
RespondentBahadur and ors.
Appellant AdvocateSankatha Rai, Adv.
Respondent AdvocateMahesh Prasad Srivastava, Adv.
DispositionAppeal dismissed
Excerpt:
..... - it, however, dismissed the suit for mandatory injunction requiring the defendants to close the doors, ventilators and the windows on the ground that theplaintiffs had failed to prove that they caused any injury to them. 10. learned counsel for the defendant appellants, however, contended that the suit for the closure of the doors, windows and ventilators in question was barred by time as it has been found by the trial court that the doors and ventilators had not been newly opened by the defendants, but had been in existence for some time, 11. learned counsel for the plaintiffs, urged, on the contrary that the continued existence of the doors and windows and the ventilators in question was a continuing wrong and unless the defendant appellants established that they had prescribed a..........said plaintiff's prayed for three sets of injunction (1) a mandatory injunction for closing the doors, ventilators and windows which had been opened by the defendants in their houses towards the land in suit which bears the number c. k. 61/38a denoted by letters ka kha, gha on the plaint map and lies to the east of the defendants' houses (2) prohibiting the defendants from interfering with the plaintiff's possession over the land in suit and (3) restraining the defendants from closing the gali which lies to the south of the land in suit and from interfering with its use by the tenants of the plaintiffs. the plaintiffs also claimed in the alternative decree for possession over the land in suit. 3. the trial court decreed the suit for the second and the third injunctions but dismissed.....
Judgment:

Deoki Nandan, J.

1. This is a defendant's second appeal in a suit for injunction.

2. The first respondent Bahadur since deceased and now represented by his widow and the second respondent Mst. Kishora who was also died and is now represented by her legal representative who were the plaintiffs in the suit giving rise to this second appeal. The third respondent Lachchman was the 7th defendant in the suit. The said plaintiff's prayed for three sets of injunction (1) a mandatory injunction for closing the doors, ventilators and windows which had been opened by the defendants in their houses towards the land in suit which bears the number C. K. 61/38A denoted by letters Ka Kha, Gha on the plaint map and lies to the east of the defendants' houses (2) prohibiting the defendants from interfering with the plaintiff's possession over the land in suit and (3) restraining the defendants from closing the Gali which lies to the south of the land in suit and from interfering with its use by the tenants of the plaintiffs. The plaintiffs also claimed in the alternative decree for possession over the land in suit.

3. The trial court decreed the suit for the second and the third injunctions but dismissed it in respect of the first of the above injunctions. The plaintiffs appealed to the District court from the dismissal to their suit in respect of the first injunction while the defendants appealed to the district court againstdecree of the trial court decreeing the suit for the last two injunctions in respect of the land in suit and the Gali. Both the appeals were heard by the court of the 1st Additional Civil Judge, Varanasi. The plaintiff's appeal being civil appeal No. 434 of 1966 was allowed and the first injunction directing the defendants to close the doors, ventilators and the windows was also decreed. The defendants appeal being civil appeal No. 4 of 1967 was dismissed and the decree of the trial court in respect of the second and the third injunctions was confirmed.

4. The relevant facts may now be stained. According to the plaintiff's case the land in suit belonged to one Sheikh Ilahi Bux, who sold it to Smt, Budhna on 10th Feb. 1897. The first plaintiff Bahadur is the grandson of Smt. Budhna's husband's brother Girdhari, and claims to have become the sole owner of the land after the death of his father Sita Ram and uncle Hari who were the sons of Girdhari. To the east of the land in suit was the house of one Babu Kasera which fell down and became Khandhar and was purchased by the second plaintiff who is in possession of the same. The Gali which lies to the south of the land in suit is a private lane, Hori Lal, father of defendant appellants Nos. 1 to 3 wrongfully got his name recorded over the land in suit, opened a door from house no. CK 61/41 which he had purchased on 13th February, 1964 and closed the Gali in suit. He also had two ventilators and two windows in his residential house, although prior to 15th April, 1954 there was only one window towards the Gali and that too had been opened with the permission of the plaintiffs.

It was then alleged by the plaintiffs that since the defendants were threatening to occupy the land in suit by force, hence it had become necessary to file the suit.

5. The defendants denied the plaintiff's title to the land in suit and claimed that it belonged to their family and was in their possession. It was also claimed that the suit was barred by Arts. 64 and 65 of the Limitation Act. Some other pleas were also raised.

6. The trial court found that the first plaintiff was the owner of the land in suit and the second plaintiff of the land to the east thereof as claimed by them, and that the suit was not barred by time. It, however, dismissed the suit for mandatory injunction requiring the defendants to close the doors, ventilators and the windows on the ground that theplaintiffs had failed to prove that they caused any injury to them. With regard to the Galli, the trial court found that the plaintiffs had a right of passage through it.

7. The only material question which, according to the lower appellate court arose for its determination was with regard to the plaintiff's title to the land in suit. On a close analysis of the evidence on the record, the lower appellate court held that the first plaintiff was the owner in possession of the land in suit,

8. With regard to the plaintiff's claim for closure of the doors, ventilators and the windows, the lower appellate court observed that the prohibitory injunction restraining the defendants from interfering with the plaintiff's possession over the land in suit was not sufficient as it would not adequately mitigate the mischief which may be created by the defendants in future and the trial court was in error in having refused the relief for a mandatory injunction directing their closure. According to the lower appellate Court, allowing the continued existence of the doors and windows in question would give rise to unnecessary litigation in future and it was also necessary to direct their closure in order to give effective and adequate relief to the plaintiffs.

9. Learned counsel for the defendant appellants did not seriously challenge the concurrent findings of the two court's below that the plaintiffs are the owners in possession of the land in suit and had a right of passage through the gali. These findings are based on an appraisal of evidence and are essentially of fact, being based on the fact that the first plaintiff was found to have been in continuous possession of the land in suit.

10. Learned counsel for the defendant appellants, however, contended that the suit for the closure of the doors, windows and ventilators in question was barred by time as it has been found by the trial court that the doors and ventilators had not been newly opened by the defendants, but had been in existence for some time,

11. Learned counsel for the plaintiffs, urged, on the contrary that the continued existence of the doors and windows and the ventilators in question was a continuing wrong and unless the defendant appellants established that they had prescribed a right of easement to pass through the doors on the plaintiff's land or to enjoy uninterrupted access to light and air through the windows and the ventilators from the plaintiff's land, they could not resist the passing of a decree of mandatory injunction against them. The defendant appellants had not set up any such case of acquisition of easementary right by prescription. In my opinion the plaintiffs' contention must prevail. The continued existence of the doors and windows is a continuing wrong. The first plaintiff can as the owner in possession of the land in suit restrain the defendants from passing through the doors in question on the land in suit or from enjoying light and air through the windows and the ventilators therefrom. Reference may be made in this connection to the cases of Bhag Singh v. Sewa Singh (AIR 1953 Pepsu 150) which was relied on by the learned counsel for the plaintiffs and also Meghu Mian v. Kishun Ram (AIR 1954 Pat 477) and Pabia v. Badia (AIR 1957 Raj 175) which support the plaintiffs' case. The appeal fails and is dismissed with costs.


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