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Kesheo Saran Vs. Jagdish Saran and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1030 of 1972
Judge
Reported inAIR1980All146
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantKesheo Saran
RespondentJagdish Saran and ors.
Appellant AdvocateG.P. Gupta, Adv.
Respondent AdvocateV.K. Tandon, Adv.
DispositionAppeal allowed
Excerpt:
civil - suit for mandatory injunction - section 47 of code of civil procedure, 1908 - for constructing six steps in staircase and roof - suit decreed - rest of staircase also fell during pendency of appeal - no amendment is made in plaint - held, executing court cannot go beyond what decree provided for. - - 2. the plaintiff claimed that he was the owner of the sahdari on the first floor of the accommodation as well as a portion of ground floor. he claimed that he was the dominant owner and the defendant was a servient owner and he had a right to enjoy the easement without any interruption......by the defendant also fell down and the plaintiff had no other approach to his portion.3. the suit was decreed by the trial court. the appeal was allowed and the suit was dismissed by the lower appellate court. thereupon the second appeal no. 1624 of 1961 was allowed by the high court on 15-4-1968 and the decree of the trial court was restored. it was ordered that the plaintiff may get the demolished portion re-constructed at his own cost without causing the least inconvenience to the defendant. in the meantime the remaining portion of the staircase which was standing at the time of the suit and for which no relief was sought in the suit, also fell down. in the execution, the decree-holder claimed that he was entitled to reconstruct the entire jina and roof including the portions.....
Judgment:

K.M. Dayal, J.

1. The present secondappeal has been filed by the judgment debtor against the order of the court below for execution of the decree. The decree holder respondent, predecessor-in-interest Lala Faquir Chand filed Suit No. 234 of 1959, against the appellant for mandatory injunction to restore a portion of the stair case and roof which had fallen down or were pulled down by the defendant.

2. The plaintiff claimed that he was the owner of the Sahdari on the first floor of the accommodation as well as a portion of ground floor. The approach to that Sahdari from the ground floor was through a staircase which was in the ground floor portion of the defendant and on roof of the defendant. He claimed that he was the dominant owner and the defendant was a servient owner and he had a right to enjoy the easement without any interruption. He claimed that the defendant demolished his house and thus the roof and the upper portion of the staircase which was owned by the defendant also fell down and the plaintiff had no other approach to his portion.

3. The suit was decreed by the trial court. The appeal was allowed and the suit was dismissed by the lower appellate court. Thereupon the second appeal No. 1624 of 1961 was allowed by the High Court on 15-4-1968 and the decree of the trial court was restored. It was ordered that the plaintiff may get the demolished portion re-constructed at his own cost without causing the least inconvenience to the defendant. In the meantime the remaining portion of the staircase which was standing at the time of the suit and for which no relief was sought in the suit, also fell down. In the execution, the decree-holder claimed that he was entitled to reconstruct the entire jina and roof including the portions about which the relief was sought in the suit itself, nor any relief was granted in the decree.

4. Both the courts below have held that in execution of the decree, which was confined to specific portion of the staircase and roof, the decree-holder was entitled to get the whole staircase constructed.

5. The judgment in both the courts below in execution side is erroneous. They had absolutely no jurisdiction to traval beyond the decree itself and allow the mandatory injunction in respect of the portions that were not involved in the previous suit.

6. From the record of the original suit it is clear that five steps on the top of the existing six old steps were alone to be constructed under the decree. An application for premission to make some constructions during the pendency of the appeal was made by the decree-holder respondent before the first appellate court in appeal against the original decree. Parties counsel made a statement before that court in the shape of an agreement on 19-11-1960. That agreement shows that six old steps existed at that time. The respondents were permitted to put up five more steps on the top of those and thus use those steps for entering the upper room. It so seems that till that date the six old steps existed which fell down subsequently. I do not find any application for amendment of the plaint or any amendment in the plaint extending the relief of reconstruction, to the portions that had fallen down during the period of litigation. Under the circumstances the plaintiff can be entitled only to execute the decree in so far it was granted by the courts below and not to anything beyond that. In case the plaintiff now wants to have those portions reconstructed which are not included in the previous decree, be could do soonly by filing a separate suit and not in the execution of decree that has already become final.

7. In the result, the present second appeal has to be allowed. The objection under Section 47, C. P. C. filed by the defendants succeed. The judgments passed by both the courts below are set aside. It is hereby ordered that the decree-holder can get only such portions reconstructed that were to be constructed under the decree passed in the original suit No. 234 of 1959 and nothing beyond that. It is further made clear that in order to give the parties appropriate relief the execution court may look to the plaint and other necessary documents on record and order the execution only in respect of such portions which were squarely covered by the decree itself. The parties are directed to bear their own costs.


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