M.M.KUMAR, J. - (1.) BY this order, I shall dispose of RSA No. 4583 of 20002 and RSA No. 3691 of 2002 as common questions of facts have been raised by the same plaintiff in both the appeals. The facts are being referred from RSA No. 4583 of 2002. Atma Ram plaintiff-petitioner has filed this second appeal assailing the concurrent findings of fact returned by both the Courts below. The Additional District Judge in his judgment and decree has concurred with the findings and has upheld the judgment and decree dated October 23, 1998 passed by the Civil Judge (Senior Division), Kurukshetra.
(2.) THE plaintiff-appellant filed civil suit No. 359 of 1996 instituted on December 7, 1990 for permanent injunction to restrain the defendant- respondents from installation of doors, windows, ventilators, drainage pipe (Patnala) in the wall described as 'BC', towards the gali (street) situated on eastern side of his house forcibly or illegally or from encroaching upon the said gali (street) either by way of raising construction over the same or in any other manner. The allegations in the plaint made by the plaintiff- appellant are that Jug Lal his father and Parsanna, his uncle respectively purchased a plot from one Roop Ram, which measured 62 ft. on northern side and 58 ft. on southern side and 60 ft on eastern and western side situated at village Budha, Tehsil Thanesar, Distt. Kurukshetra. According to the plaintiff-appellant, there was a gali (street) towards eastern side as is shown in the site plan attached with the suit and the afore-mentioned gali (street) has been in existence since the inception of the village and the same was there when the plot was purchased by his father and uncle from Roop Ram. The afore-mentioned plot fell to his share in the family settlement and the plaintiff demolished the old construction to build a new house. The construction when reached upto the roof level, he wanted to install windows, doors, ventilators and patnala in the afore-mentioned walls on some portion towards the eastern side of the street but the defendant-respondents do not allow him to do the same as they themselves want to encroach upon the land. The stand taken by the defendant-respondents in their written statement is that in fact there was no gali (street) towards the eastern side of the property of the plaintiff-appellant as alleged. It was asserted that there was a property, which is owned and possessed by the defendant-respondents as has been explained by the Local Commissioner in his report dated December 13, 1990 and the compromise is dated September 24, 1990 and December, 22, 1990. It is claimed that the defendant-respondents are owner in possession of the property in dispute. The defendant-respondents revealed that another civil suit titled as Ram Pal v. Atma Ram has been filed, in which an order of stay granted against the plaintiff-appellant. It is claimed that the plaintiff- appellant have no locus standi to file the present suit. The civil Judge on the pleadings of the parties, framed the following issues :- "1. Whether Jug Lal and Parsanna, father and uncle respectively of Atma Ram plaintiff purchased the suit plot from Roop Ram son of Shri Ram Kala ? OPP. 2. If issue No. 1 is proved, then whether on account of family settlement, the suit plot fell into the share of plaintiff ? OPP. 3. Whether the suit is not maintainable as alleged ? OPD. 4. Whether the plaintiff has got no locus standi to file the suit ? OPD. 5. Whether the plaintiff has no cause of action to file the suit ? OPD. 6. Whether the suit is bad under Order 1 rule 8 of the Code of Civil Procedure ? OPD. 7. Whether the suit is improperly valued for the purposes of Court fee and jurisdiction ? OPD. 8. Relief." On issue No. 2 the Civil Judge reached the conclusion that the plot in dispute was purchased by Jug Lal and Parsanna from Roop Ram for a valuable consideration, therefore, the issue was decided in favour of the plaintiff- appellant and against the defendant-respondents. Even on issue No. 2, the Civil Judge held that in family settlement, the plot was allocated to the plaintiff-appellant. On issue No. 3 and 4, detailed evidence having been led, the civil Judge concluded as under :- "From the above discussed evidence, it is thus quite evident that there lies no street adjacent to the eastern wall of the house of plaintiff towards the house of the defendants but there lies some vacant land and verandah covered by ventilator with Kacha roof. This vacant land is being used by plaintiff as source of air and light to his property from the very beginning. Earlier a Patnala of plaintiff was also in existence towards the side of the defendants but in my opinion, and as is evident from the evidence led by the defendants, the said patnala was removed by the plaintiff. But it is proved that the plaintiff is having opening like window/ventilator towards the house of the defendants which is evident from the report of the Local Commissioner. Therefore, the suit of the plaintiff is maintainable and plaintiff has got locus-standi to file the same to the extent that the defendants cannot deprive the plaintiff from using natural air and light from the eastern side. Thus, both these issues are accordingly decided partly in favour of the plaintiff and partly against the defendants."
(3.) ISSUES No. 5 and 6 were decided in favour of the plaintiff-appellant.;