Decided on May 06,2013

Asha Devi Alias Anju Karki Appellant
GOVIND SINGH Respondents


- (1.) This Second Appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 18.07.2012, passed by Additional District Judge, Almora, in Civil Appeal No. 10 of 2006, whereby said court has affirmed the judgment and decree passed by the trial court (Civil Judge (Junior Division), Almora), in Suit No. 14 of 1998.
(2.) Heard learned counsel for the parties, and perused the lower court record.
(3.) Brief facts of the case giving rise to this appeal are that plaintiff/respondent No.1 Govind Singh filed a suit No. 14 of 1998, initially for injunction against the defendants claiming easementary right of access and use of light and air over the property of the defendants. It is pleaded in the plaint that the plaintiff purchased a land measuring 9 Mutthi of Plot No. 2781 from one Nath Singh Jeena in Mohalla Khatyadi of Almora, through sale deed dated 21.05.1973, and constructed his house in the year 1974. It is further pleaded that adjoining to said land, plot No. 2779 belonging to defendant No.1 Asha Devi is situated, in which she has started construction of her house, which she wants to make a double storied building. It is alleged by the plaintiff that he was enjoying use of air and light coming through the plot of the defendant No.1 and he has matured the right of easement by way of prescription on completion of such use for a period of more than twenty years (precisely twenty four years). It is further alleged by him that since the defendant no.1 has failed to stop construction, on his request, the suit is instituted (during pendency of the suit amendment was made in the plaint and it was pleaded that first floor has also been constructed by defendant No.1 during the pendency of suit and as such, the same (first floor) is liable to be demolished). It is also pertinent to mention here that similarly Suit No. 15 of 1998, was filed by the plaintiff against one Debuli Devi (since died) who was constructing her house over the plot No. 2778. Both the suits were consolidated and tried together, and the trial court partly decreed the suit, vide its judgment and order dated 02.02.2006, directing that defendant No.1 Asha Devi, to remove the construction raised by her on the first floor up to the width of 3 feet from the varandah of the plaintiff. (Similar direction was issued in the connected Suit No. 15 of 1998).;

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