- (1.) HEARD learned counsel for the defendant-appellant.
(2.) THIS second appeal under Section 100 CPC has been filed by the defendant-appellant against the judgment and decree dated 15th September, 2008 passed by the Additional District Judge (Fast Track) No.1, Dholpur in civil regular appeal no.216/2007 whereby he has dismissed the appeal filed by the defendant appellant against the judgment and decree dated 11th May, 2001 passed by Additional Civil Judge (Jr.Div.) No.1, Dholpur in civil suit no.147/1990 whereby he has decreed the suit of the plaintiff respondents for permanent injunction. Briefly, stated the facts of the case are that the plaintiff respondents filed a civil suit for permanent injunction against the defendant appellant with the averments that they purchased plot nos. 1 and 2 from one Shivcharan Lal measuring 35 ft. x 30 ft. Another plot no.3 was also purchased by Tara Chand, husband of plaintiff no.1 which was subsequently sold by Tara Chand to one Ramveer Sharma and in the northern side of all the three plots, the plot of defendant is situated. It was further averred that when the plaintiff purchased the plots from Shiv Charan Lal a condition was imposed by Shiv Charan Lal that the plaintiffs will leave 5 ft. land in the northern side as a way for the owner of plot no.3 . On the basis of such condition it was averred that 5 ft. land of way is in the ownership of the plaintiffs and the defendant has no right upon the said land. The further case of the plaintiff is that the defendant obtained sanction from the Municipal Board, Dholpur for constructing ventilator, window, door etc. opening in the property in dispute for which he has no right. It was then averred that stay was granted in favour of the plaintiffs in the appeal filed by them against the order granting sanction by the Municipal Board, Dholpur and inspite of the stay order, the defendant bent upon to open door, window, ventilator etc. towards the property in dispute. Thus, it ws prayed that the defendant be restrained by way of permanent injunction from opening any door, window, ventilator etc. or erecting any projection towards the property in dispute. The defendant appellant filed his written statement and denied the averments made therein. It was mentioned that the land in dispute measuring 5 ft. is a common way and the plaintiffs are not the owner of the same and that the defendant has right to open ventilator, window, door etc. towards the way and the plaintiffs are not entitled to get any relief against the defendant. It was also mentioned that the plaintiffs have not filed any appeal against the sanction order granted by the Municipal Board to the defendant for construction and that when the plaintiffs applied for sanction to construct septic tank the same was declined. Therefore, it is clear that the plaintiffs have no right over the land in dispute and the suit is liable to be dismissed. On the basis of the pleadings of the parties, the trial court framed the following four issues:- ...[VERNACULAR TEXT OMMITED]... In support of their case, plaintiffs examined PW.1 Tara Chand, PW.2 Ram Singh and PW.3 Shivcharanlal. In documentary evidence, Ex.1 Power of Attorney, Ex.2 map annexed to the plaint, Ex.3 Sale-deed in favour of Urmila Devi, Ex.4 map annexed to agreement to sale in favour of Urmila Devi, Ex.5 Sale-deed in favour of Kastoori Devi, Ex.6 Map annexed to sale deed in favour of Kastoori Devi, Ex.7 Sale deed in favour of Shivcharanlal, Ex.8 map annexed to sale deed in favour of Shivcharanlal, Ex.9 map annexed to agreement to sale in favour of Vidhya Devi, Ex.10 map annexed to sale deed in favour of Prabhu Dayal, Ex.11 Sale-deed in favour of Vidhya Devi, Ex.12 Sale-deed in favour of Prabhu Dayal, Ex.13 sanction in favour of Vidhya Devi, Ex.14 sanctioned map of Vidhya Devi.
(3.) IN support of his case, the defendant examined DW.1 Prabhu Dayal, DW.2 Pradeep Kumar and DW.3 Ashok Prasad. After recording evidence of the parties and hearing both the sides, the trial court decided issues no.1 in favour of the plaintiffs, issue no.2 was decided partially in favour of the plaintiffs and thus, vide judgment and decree dated 11th May, 2001 partially decreed the suit of the plaintiffs restraining the defendant from opening any door, drainage etc. towards the way which is in the ownership of the plaintiffs. The defendant was further restrained from constructing any projection towards the disputed land and in case he opens any window or ventilator in the wall, the panel of which be not openable towards the disputed land. Against this judgment and decree, the defendant filed first appeal before the lower appellate court. ;