A.N.Varma - (1.) THIS is a plaintiffs second appeal arising out of a suit for prohibitory and mandatory injunction as well as for recovery of Rs. 500/- as damages. The trail court had decreed the suit. The appellate court, however, reversed the decree of the trial court and dismissed the suit. Hence this second appeal.
(2.) BRIEFLY, the plaint case was that the plaintiff house lay towards the north of the wall AB shown in the plaint map. In the south of this house was plaintiff's Baithak which was later constructed into a double-storeyed room ABCD shown in the plaint map. Towards the east of the plaintiff's house there was a piece of vacant land which was acquired by the defendant. The wall AB was exclusively owned by the plaintiff and upon this wall rested the support of the room ABCD. The water from the plaintiff's house always used to flow towards the west through the wall AB. The (sic) of the plaintiff's house were also inclined towards the west. The defendant, however, dug up a 9" hole into the wall AB in the upper storey and fixed bricks in that wall. Before doing that, the defendant dismantled the tonda, chhajja as well as Khapral of the plaintiff's upper wall. When the defendant did not stop, the plaintiff had to lodge a First Information Report. On account of the illegal acts of the defendant, the wall AB developed a crack causing loss to the plaintiff amounting to Rs. 400/-. As the defendant was continuing to give threats to dismantle the remaining part of the chhajja and tonda, the present suit was brought for prohibitory injunction as well as mandatory injunction directing the defendant to restore the wall AB to its original state. The suit was contested by the defendant. His case was that the wall belonged exclusively to him and that the defendant had constructed his house with the permission of the Town Area Committee. The dispute with regard to the ownership of the wall stands settled by the decree passed in suit no. 232 of 1962 between the same parties in which the plaintiff admitted that the wall in suit belonged exclusively to the defendant. Indeed the plaintiff constructed his upper storey by taking support from the defendant's wall AB with the express permission of the latter. The issue as to the direction in which the water from the plaintiff's house used to flow also stood settled between the parties in the aforesaid suit no. 232 of 1962. In any case, the defendant had not damaged the wall or dismantled the tonda, chhajja, Khaprail etc. of the plaintiff's upper wall. The trial court accepted the case of the plaintiff with regard to the ownership of the wall AB and, on the further finding that the defendant had caused damage to that wall and dismantled tonda and chhajja, etc of the plaintiff it decreed the suit for injunction as well as for damages.
(3.) ON appeal by the defendant, the lower appellate court reversed these findings and held that the wall belonged exclusively to the defendant. It has further found that the defendant has caused no damage to that wall in any case, so as to entitle the plaintiff to any relief for damages. The lower appellate court on a consideration of .the evidence including the admission of the plaintiff, has recorded a categorical finding that the water of the plaintiffs house used to flow north and south and not towards the house of the defendant as alleged by the plaintiff. The main contention of Sri S. A. Ansari, learned counsel for the appellant, was that the suit of the plaintiff-appellant was entitled to succeed on the own admission made by the defendant in paragraph 3 of the written statement which was to the effect that the double storeyed room of the plaintiff was built with the leave and permission of the defendant's ancestors. Relying on this assertion, learned counsel submitted that in view of the admitted fact that the plaintiff did construct a double storeyed room resting on the wall AB, the licence granted to the plaintiff became irrevocable under Sec 60 (b) of the Easements Act and consequently the defendant had no right to dismantle any portion of that wall or to interfere with the plaintiff's right arising from that licence.;