Deoki Nandan, J. - (1.) THIS is a defendant's second appeal in a suit basically for demolition of a Dasa with stairs, and Gokh constructed by the defendant some 10 years before the suit was filed; the Dasa having been constructed in June 1952 and the Gokh having been constructed in 1954, and the suit having been filed in February, 1963.
(2.) THE trial court dismissed the suit on the ground that it was barred by time, and by estoppel and acquiscence, and that it was not a fit case for grant of the relief of injunction in the exercise of the Court's discretion. On appeal the lower appellate court has reversed these findings and held that the suit was not barred by time, nor by estoppel, nor was it a case in which the relief could be refused to the plaintiff; and decreed the suit except in respect of windows which had been opened by the defendant in his own walls. Aggrieved by this, defendant has come up in appeal. The first point which has been raised by the learned counsel, is with regard to the finding of the lower appellate court on the question of limitation. The lower appellate court has held that the suit was essentially a suit for possession and Aiticle 142 of the Indian Limitation Act, 1908, was applicable thereto. The trial court held that the suit was essentially a suit for mandatory Injunction for restoration of the land to its original conditions by demolishing the encroachments made and by prohibiting the defendant from making any encroachment in future, and that the suit was governed by Article 120 of that Act.
(3.) HAVING heard the learned councel for the parties, I am satisfied that the view of the trial court is preferable to the view taken by the lower appellate court on this point. The plaintiff had come to court with the allegations that the construction complained of had been erected by the defendant on the land which was left open for passage from their respective houses. It is undisputed that the constructions in question project out of the defendant's house on the land reserved for passage. It has concurrently been found by the two courts below that the land of the passage belonged to the plaintiff. Now the relief claimed by the plaintiff is in the following words : (a) Yah ki basdur decree hukum imatnal dawami pratiwadi ko adesh diya jaway ki who andar miyad moiyana adalat dasa wo sirihya wo tanda, chajay wo gokh wo jangala, jo usne bajanib purab wo dakhin araji wadi ki taraf araji wadi par nikal liye hain aur jo naksa hamrista maye lal nisan se dikhalaye gaye hain jispar haraf EFGHIJUKLMNBC para hain, mismar wo band kar de aur ayanda koi encroachment wo jangle wagairah nasab na karadar surat uske kasir rahane ke bajaya Amin Adalal uprokt chizon ko mismar wo band karadi jawe aur araji wadi saaf wo khall karaye jakar wadi ko uspar dakhal kamil dilaya jawe. Now the claim of exclusive possession by the last few words in the relief claimed, was, on the plaint allegations themselves, clearly untenable. When the plaintiff and the defendant both had a right of passage over the land, exclusive possession was claimed probably with the ulterior object of getting over the bar of limitation which stares on the face of the plaint. The lower appellate court was in my view, clearly in error in holding that the suit was essentially a suit for possession. On the other hand the suit was essentially a suit for injunction, mandatory as well as preventive for having the land restored to its original condition. Such a suit was governed by Article 120 of the Indian Limitation Act, 1908. The plaintiff's suit was therefore liable to be dismissed, as barred by time. In this view of the matter, no other point survives for consideration.;