SUKHA DEVI Vs. SH PARITOSH CHAUHAN

JUDGEMENT

(1.) The instant appeal has chequered history.

(2.) The plaintiff is the appellant, who after having lost before both the learned Courts below has filed the instant Regular Second Appeal.

(3.) The plaintiff filed a suit for declaration and permanent prohibitory injunction against the defendant before the learned Civil Judge (Jr. Division), Sirmaur District at Nahan vide Civil Suit No. 37/1 of 2014 with averments that she is the owner in possession of suit property comprised in Khewat Khatauni No. 74/109, Khasra No. 2141/216, measuring 7.65 sq.mtrs. Khasra No. 218 measuring 91.14 sq.mtrs., khasra No. 2145/221 measuring 6.46 sq.mtrs. total measuring 105.25 sq.mtrs situated at Mohal Naya Bazar, Nahan, District Sirmaur and the plaintiff has built up her residential house over the suit property. It was claimed that adjacent to the suit property, the defendant is having his landed property comprised in khasra No. 2142/216 measuring 161.43 sq.mtrs. and khasra No. 217 measuring 80.40 sq.mtrs total measuring 241.83 sq.mtrs situated at Naya Bazar, Nahan. The house of the plaintiff is situated over her land for the last more than 25 years and there exists a window of size about 6' x 2.5 feet, which opens towards the land of khasra No. 217 owned and possessed by the defendant and she is enjoying the light and air to her house/bed room from the said window peacefully without any interruption continuously as an easement for the last 25 years and thus she has acquired easement by way of prescription. The construction and window of the house of the plaintiff is sown in site plan mark X in green colour. It was claimed that the appellant for the protection of her property has raised a boundary wall around it up to the height of 11 feet bricks and stone wall and the defendant has no right, title or interest in her property. It was pleaded that the defendant started raising construction over his property on khasra No. 217 and 2142/216 without getting the site plan approved from the M.C. or TCP, Nahan and he started digging the pits for construction of pillars just adjacent to the wall of the plaintiff and thereby caused huge damage to the wall of the plaintiff. Moreover, the defendant also dug a pit in front of the window of the house of the plaintiff with a view to block it and she had to file a complaint with the police on 30.3.2014 and the defendant was also directed not to do so and he made a statement before the police to the effect that he will not raise any kind of construction till he gets his land demarcated through the revenue agency. It was pleaded that thereafter the defendant again started raising construction of his house in an illegal manner and if the defendant is not restrained from causing interference or raising construction in illegal manner, he will demolish the wall of the plaintiff and close the window by raising construction and the plaintiff will be deprived of enjoying light and air to her house and she will suffer irreparable loss and injury which cannot be compensated in terms of money. Hence the suit.