- (1.)The plaintiff has preferred this appeal against the judgment and decree of the Civil Judge of Mangalore, S.K. in Appeal Suit No. 33 of 1965 modifying the decree made by the Munsiff of Mangalore in O.S. 131 of 1962. The defendant has filed cross-objections questioning the correctness of the decree made by the lower court.
(2.)The plaintiff and the defendant are owners of neighbouring properties. The plaintiff in the first instance sought for a permanent injunction restraining the defendant from putting up any building without keeping an open space or at least 4 feet at the northern edge of his plot; and from disturbing or interfering with the right of the plaintiff to enjoy sufficient quantity of light and air through the windows of his building opening towards the defendant's premises.
(3.)Later, as the defendant had put up the structure on his premises, the plaintiff was permitted to amend the plaint by praying for a mandatory injunction directing the defendant to remove any superstructure put up within 4ft. of the northern edge of the defendant's premises. The trial court framed several issues in relation to the relief of permanent injunction. The learned Munsiff however decreed the suit as prayed for with costs. It may be mentioned that the trial court granted the mandatory injunction even though no issue in regard to it is framed. The learned Civil Judge, on appeal, set out the points for consideration and the fourth point sets out the following: "(iv) whether the defendant is liable for the demolition of the entire building or a portion of it?" The learned Civil Judge dismissed the appeal modifying the decree of the trial court directing that a space of 4ft. is to be left open between the window W1 and the building of the defendant, and to do so the defendant should remove a portion of his building. The plaintiff who was aggrieved by this portion of the decree preferred this second appeal, while the defendant has preferred cross-objections questioning the correctness of the entire decree.
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