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Musammat Kokla Kunar Vs. Kalian Mal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All452; 76Ind.Cas.585
AppellantMusammat Kokla Kunar
RespondentKalian Mal
Cases ReferredBeni Ram v. Kundan Lal
Excerpt:
limitation act (ix of 1908), schedule i, article 120 - suit for injunction to remove beams--limitation--acquiescence, what amounts to--objection, effect of. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - the municipal board naturally refused to decide the question of title, and the defendant went on making his constructions, so that he cannot plead the principle of acquiescence as has been clearly haid down by their lordships of the privy council in the case of beni ram v......have been made, belonged to the defendant and (2) that the constructions were old. the first court decreed possession of and demolition of the constructions on the land of the chabutra, but dismissed the claim for removal of the beams on the wall and for possession of the land occupied by it. both parties went up in appeal. the lower appellate court confirmed the decree of the trial court on the question of the encroachments on a portion of the chabutra but, instead of decreeing demolition, as the first court had done, dismissed the shit for possession and demolition on what it considered to be a question of acquiescence and estoppel. this view seems to be totally incorrect. the facts are that as soon as the defendant applied for permission to the municipal beard to construct a new.....
Judgment:

Gokul Prasad, J.

1. This is a plaintiff's appeal arising out of a suit (a) for possession and demolition of certain constructions built on what the plaintiff Called the land of her chabutara, (b) for removal of certain beams alleged to have been placed by the defendant on the plaintiffs wall, (c) for the closing of a door opening on to the land of the plaintiff, and (d) for an injunction restraining the defendant from passing on to the plaintiff's chabutra through those doors. The defence pleaded was (1) that the land, on which the alleged encroachments are said to have been made, belonged to the defendant and (2) that the constructions were old. The First Court decreed possession of and demolition of the constructions on the land of the chabutra, but dismissed the claim for removal of the beams on the wall and for possession of the land occupied by it. Both parties went up in appeal. The lower Appellate Court confirmed the decree of the Trial Court on the question of the encroachments on a portion of the chabutra but, instead of decreeing demolition, as the First Court had done, dismissed the shit for possession and demolition on what it considered to be a question of acquiescence and estoppel. This view seems to be totally incorrect. The facts are that as soon as the defendant applied for permission to the Municipal Beard to construct a new building, the plaintiff at once put in an objection claiming the land as hers. The Municipal Board naturally refused to decide the question of title, and the defendant went on making his constructions, so that he cannot plead the principle of acquiescence as has been clearly haid down by their Lordships of the Privy Council in the case of Beni Ram v. Kundan Lal 21 A. 496 : 26 I.A. 59 : 3 C.W.N. 502 : 1 Bom. L.R. 400 : 7 Sar. P.C.J. 523 : 9 Ind. Dec. (N.S.) 1022 (P.C.). The defendant, under these circumstances, cannot be said to have erected his building under a mistaken belief that the land Was his. The principle of acquiescence, therefore, does not apply and, so far as this portion of the claim is concerned, the plaintiff is entitled to a decree for demolition and not damages only as awarded by the lower Court. The decree of the lower Appellate Court on the question of the blocking up of the door was a right decree. The plaintiff has no right to close the door on another man's land. This remark applies only to the door existing in the building on the chabutra marked WX in the Amin's sketch about which the plaintiff's claim has been dismissed. Of course, with the decree in ravour of the plaintiff for possession of the land marked YZ in the Amin's sketch by demolition of the construction, the door will ipso facto cease to exist. The decree on the question of removal of the beams seems to be a correct one, because the beams were placed more than six years ago and a suit for removal of the beams is barred by six years' rule of limitation. I cannot see any other way in which the beams can be removed. The wall has been held to belong to the plaintiff and all that I can do is to declare that the defendant has acquired no right of support, because he has got his beams on the plaintiff's wall. This was an encroachment and could have been removed it the suit ted been brought within time. The other points are covered by findings of fact and the right of privacy now raised by the plaintiff was not taken in the lower Courts.

2. The defendant's Appeal No. 1667 of 1921 is concluded by findings of fact and dismissed with, costs.

3. The result of the above findings is that the decree of the lower Appellate Court is modified and the decree of the First Court restored so far as the removal of the buildings on plot YZ is concerned, and also for possession of the wall on which the defendant's beams are kept and for the permanent injunction claimed in relief (c) and the declaration above. The rest of the suit stands dismissed. The plaintiff-appellant will have her costs in this Court and in the lower Appellate Court the costs in the First Court as entered in the decree of that Court.


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