Nisha Gupta, J. - (1.) THIS second appeal under Section 100 CPC has been filed against the judgment and decree dated 16.12.93 passed by Additional Civil Judge No. 1, Jaipur City, Jaipur in Civil Appeal No. 11/85 (5/85) (16/91) confirming the judgment and decree dated 18.3.85 passed by Munsiff and Judicial Magistrate, Chomu in Civil Suit No. 46/81.
(2.) THE short facts of the case are that the appellant filed a suit for permanent injunction with the contention that the appellant is the owner of property shown green colour in the map annexed with the plaint and the respondent is the owner of the property shown in orange colour. In between the house of the appellant and respondent, there is a lane of 3 ft. The defendant respondent has made encroachment in the lane and has reduced it to 2.5 ft. and the disputed land has been marked 'XY' in the plan. The lane is existing from a long time and is being used by the appellant. The plaintiff's kitchen window has opening on the disputed land. The defendant wanted to close the window of the kitchen of the plaintiff by putting a chappar in front of them on which the plaintiff moved before the Gram Panchayat and defendant was restrained vide order dated 28.6.80. In spite of this order, the respondent is going to encroach the lane, hence a suit for injunction has been filed. The respondent has contended in his written statement that no lane is existed in between the house of the appellant and the respondent. The trial court dismissed the suit and the appeal has also been dismissed, hence this appeal. The contention of the appellant is that the findings of the two courts below are erroneous. It is the case of mis appreciation of the evidence. The court below has not considered the map Ex. 5 issued by the Gram Panchayat and the evidence of Murlidhar who is a Sarpanch of the village and is an independent witness and furthermore, it has been stated that when window of the appellant is opened no restriction be put to fix iron bars in the window. The respondent has encroached on the government land. Per contra, the contention of the respondent was that there is no infirmity in the judgments of the courts below. There is no lane between the two properties. Earlier in 1965 a dispute arose between the parties and the plaintiff appellant has been restrained from opening the window and he has been restrained from putting iron bars on the window on 7.3.65. Ex. 5 has no sanctity as it has not been prepared in any proceeding of the Panchayat. The appeal has been admitted on 30.1.2006 on the following substantial questions of law: "Whether the finding of the two Courts below with regard to lane can be said to be incorrect in view of Ex. 5 and in view of defendant's witnesses themselves? Whether the appellant can be restrained from putting window panels in his own property? Whether the appellant cannot restrain the respondent from raising constructions when the respondent is not the owner of the property -
(3.) HEARD the learned counsel for the parties and perused the judgments and decree under appeal as well as the original record of the case.;