D.P. Gupta, J.
1. This is defendant's second appeal in a suit for declaration and mandatory injunction.
2. The plaintiff's case is that the houses of the parties are situated at Banswara adjoining to each other. The house of the defendant is to wards the north-east of the plaintiff's house. In a previous suit between the plaintiff's father and Kastoorchand the predecessor-in - interest of the defendant, a compromise was arrived at between the parties to that suit and it was agreed that the plaintiff's father would be allowed to rest the rafters, pat etc. of his bouse In the western wall of the defendant's house and that Kastoorchand would be allowed to construct only one window (Ventilator) towards the 'marh' (shed) and that Kastoorchand would not be permitted to construct more than one window or ventilator in the western wall of his house. On the basis of that compromise, a decree was passed in favcur of the plaintiff's father, a copy of which is on record as Ex. 4 A copy of the compromise application dated December 15, 1932 filed by the plaintiff's father and Kastoorcband in the previous suit has alto been place a on record and marked Ex. 3 The plaintiff has further submitted that Kastocrohand sold his house to the present defendant and alter (sic) asing the seme. the defendant in the month of July, 1962 during the plaintiff's absence opened two ventilators and two drains in the western wall of his house towards 'the plaintiff's' math' and has also constructed a'chhaja' 11/2 wide and 11/2 long. The plaintiff complained that the dtfendant had no right to open the atoresid apertures nor be could have constructed the-'chhaja', and, therefore, he filed the suit in the court of Munsiff, (sic) on dated 17-10-1962 praying that a mandatory injurction be issued to the defendant directing him to close the ventilators and the spouts and to demclish the 'chhaja' constructed by the defendant. He further prayed that a declaration be made that he has a right to place his rafters on the Western wall of the defendant's house and a permanent injunction beissued restraining the defendant from opening any fresh apertures or making any constructions to werds the western wall of the defendant's house
3. The defendant in his written statement submitted that he was not aware of the previous suit as alleged by the plaintiff and be disputed the ownership and possession of the plaint ff in respect of the 'khidki' and 'marh'. He further asserted that he has constructed the 'chhaja' in place of old existing one and that the same projects over the land which exclusively belongs to the defendant and is in his possession. He also claimed that the spouts were old as also the ventilators. The defendant also submitted that he had made all the (sic) complained of by the plaintiff in June, 1962 in the presence of the plaintiff and the plaintiff took no objection at the time when the construct-ions were made and the present suit was barred on the ground of waiver and and laches for the aforesaid conduct of the plaintiff. The trial Court on 20-12-65 decreed the plaintiff's suit in full and granted a mandatory injunction against the defendant directing him to demolish the chhaja, close the two ventilators and two spouts in the western wall of his house and also granted a perpetual inhjuction restraining the defendant from making any such constructions or openings in the said western wall of the defendant's house. A declaration was also granted in favour of the plaintiff to the effect that he was entitled to rest his rafters and 'pat' on the defendant's western wall and to construct a 'marh' and that the defendant should not interfere in the aforesaid constructions. It was directed that the defendant should demolish the constructions and close the ventilators and spouts within 30 days of the date of decree passed by the trial Court.
4. The defendant filed an appeal before the Senior Civil Judge, Banswara who partly allowed the appeal by his judgment dated 1-8-66. The learned Senior Civil Judge came to the conclusion that one of the ventilators was constructed by the defendant in place of his old window and that the ventilators and the spouts were constructed by the defendant in June. 1962 in the presence of the plaintiff and as the plaintiff did not raise any objection at the time of the opening of the aforesaid apertures he was guilty of laches and would be considered to have waived his right to get the said apertures closed. He, therefore, modified the decree passed by the learned Munsif and dismissed the plaintiff's suit in respect of the ventilators and the spouts As regards the decree for the dernolition of the chhaja' (petit roof) the learned Senior Civil Judge directed that the trial Court's decree would be maintained in respect there of except over the place of the old window. The declaratory decree granted in favour of the plaintiff in respect of resting the raftars and 'pat' of the plaintiff house in the western wall of the defendant's house and regarding the construction of marh was also maintained.
5. The defendant being dis satisfied with the decree passed by the Senior Civil Judge, Banswara, has filed this second appeal.
6. I have heard Mr. N.M. Lodha learned Counsel for the appellant. The plaintiff respondent did not appear inspite of service of summon and on him.
7. learned Counsel for the appellant has made two submissions
(1 that the declaratory decree granted in favour of the plaintiff regarding the rafters, pat and 'Marh' should be set aside.
(2) that the decree for the demolition of the 'chhaja' should also be set aside.
As regards the first contention, the learned counsel, when faced with the compromise deed Ex. 3 and the becree passed in pursuance thereof Ex. 4, was not able to show as to how the declaratory decree passed by the two courts below was illegel its any manner. There was a definite compromise in the previous suit between the father of the plainiff and the predecessor in title of the defendant, by which the Western wall of the defendant's house was maintained with this condition that the plaintiff's father would have a right to rest the rafters at the height of 12 feet over this Western wall and was also given the right to keep his 'pat' and to construct a 'Marh'. This compromise deed Ex. 3 resulted in the passing of the compromise decree Ex. 4. The defendant having purchased the house in question from Kasturchand is bound by the aforesaid agreement to which his predecessor-in title, Kasturchand was a party. Thus, so far as the declaratory decree pissed by the two courts below in favour of the plaintiff, entitling him to rest his rafters and 'pat' on the western wall of the defendant's house and giving him a right to construct a 'marh' is concerned, it does not call for any interference.
8. With regard to the second submission of the learned Counsel for the appellant that the demolition of the 'chhaja' should not have been ordered, he has argued that in the first instance the 'chhaja' was not a new construction but the defendant has replaced a new 'chhaja' in place of the old one and secondly, that the construction of the aforesaid 'chhaja' was made by the defendant in his own western wall and over hanging the defendant's own land, and the plaintiff had no right to get the same demolished. He has further argued that the principle of laches and waiver applied by the Senior Civil Judge in respect of the ventilators and spouts should also have been applied in respect of the 'chhaja' as well because the constructions were made by the defendant in the month of June, 1962 at one and the same time and two different principles could not have been applied so far as relating to the ventilators and the spouts on the one hand and the 'chhaja' on the other hand, He has also submitted that the plaintiff was satisfied with the decree passed by the learned Senior Civil Judge and did not file any appeal against the dismissal of his suit relating to ventilators and spouts in this Court.
9. As regards the first submission of the learned counsel, it may be observed that the 'chhaja' in question is 11 feet in length and 11 feet in width& it is not the case of the defendant himself in his written statement that the entire 'chhaja' to the full length thereof was constructed by him in place of old existing 'chhaja'. In para 4 of the written statement it has been clearly mentioned that there was an old 'chhaja' over the window which was removed and that it was necessary to construct an 'chhaja' over the ventilators and, as such, the defendant has constructed the 'chhaja' in his own wall and over his own land. A bare reading of the averments made in para 4 of the written statement go to show that the defendant only claimed that there was an old existing 'chhaja' over the old window and now a 'chhaja' has been constructed oven the entire length of 11/2' A perusal of the site plan Ex. 1 would allow that the western wall of the defendant's house is 11/2' long and it appears that a 'chhaja' has been constructed by him to the full extent of his western wall Thus, there can be no doubt that the 'chhaja' has been newly constructed by the defendant except in so far as a small portion existed over the old window in the wtstern wall of the defendant's house. However, in the plaint, the plaintiff has pleaded that the 'chhaja' was consiructed & the ventilators and the spouts were opened by the defendant during the months of July and August. 1962 On the other hand, in the written statement the defendant pleaded that he nude all the constructions in the month of June, 1962 in the presence of the plaintiff and the plaintiff raised no objection whatsoever. Plaintiff Vinaysingh stated as PW/1 that he went out in the month or July, 1962 and remained out of Banswara during that month. However, in his cross-examination, he admitted that the work of construction of ventilators was started on 17th or 18th June. On the other hand, the defendant Manilal as DW/1 stated that the entire constructions, namely, the opening of ventilators and windows and the construction of 'chhajas' were made by him at one and the same time and that all the constructions were completed prior to 25th of June, 1962, He has also stated that at the time when the constructions were made by him the plaintiff was present in Banswara but he did not make any objection. Thus, from the aforesaid evidence it is apparent that the defendant had made construction of the 'chhaja' along with the opening of the ventilators and spouts in the month of June, 1962, and that the plaintiff was present in Banswara at that time. The conduct of the plaintiff, in as much as he stood by and did not object to the making of the aforesaid constructions by the defendant, has been considered by the learned Senior Civil Judge to have the effect that the plaintiff waived his right so far as the ventilators and the spouts are concerned and. I see no reason why the same principle should not be applied in the case of the 'chhaja', when from the evidence it appears that the construction of the 'chhaja' was made at the same time when the ventilators and the spouts were opened. The learned lower appellate Court has maintained the right of the defendent in respect of the 'chhaja' to the extent that it pertained to the old window. However, the directed the demolition of the remaining part of the'chhaja'on the ground that the defendent had merely a right of passage through the 'chowk' like some other neighbours but he was not entitled to make constructions, over the land of the chowk. But, if the plaintiff stood by and allowed the defendant to construct the 'chhaja' for the full length of 11/2 along the western wall of his house and kept silent for almost a period of four months, then there was no justification for granting a mandatory injunctions as the plaintiff should be considered to have waived his rights. It may also be mentioned here that the ventilators and spouts constructed along with the chhaja were maintained by the learned Senior Civil Judge on this very ground and the plaintiff did not file any appeal against the decree passed by the learned Senior Civil Judge. In this view of the matter, I think, that there is no justification for granting a rrandatory injunction for the demolition of the 'chhaja'.
10. The appeal is, therefore, partly allowed and the decree passed by the Senior Civil Judge, Banswara, is modified so that the plaintiff's suit in respect of the demolition of the 'chhaja' (pent-roof) is also dismissed. However, the declaratory decree granted by the Munsiff, Banswara, in respect of the right of the plaintiff to rest his rafters and 'pat' on the western wall of the defendant's house and to construct a 'marh', which has been upheld by the Senior Civil Judge, Banswara, is maintained. As the plaintiff has not appeared in this Court, I direct that the parties shall bear their own costs of this appeal.