J.P.JAIN, J. - (1.) THIS is defendant's second appeal against whom respondents' suit for injunction has been decreed in part by the Munsiff -Magistrate. Behror by his order dated August 9, 197l, and upheld by the Additional Civil Judge, Alwar vide his order dated November 27, 1972.
(2.) RAMAVTAR , Ram Swaroop and Rama Kant, sons of Nanag Ram instituted a suit against Sayam Lal in the Court Munsiff Behror alleging that they belong to one family, and they have their houses in Mohalla Mishran, village Behror. The property has been shown in Ex. 1 placed on record by the plaintiffs. According to them, 'chowk' shown as 'A' belongs to the plaintiffs, whereas 'chowk' 'B' belongs to the defendant Shyam Lal, and it is demarcated by a stone slab marked 'J'. It has further been alleged that 'chabutra' 'C' falls within the 'chowk' 'A, and it belongs to the plaintiffs, and their ancestors. According to them, to the east of this chabatra' is the defendant's house, and there is spout Z', which falls on the 'chabutra' 'C, but it was wholly meant for the discharge of rainy water. For some time, the defendant has made it for personal use, and the discharge of dirty water from that spout, which has made the 'chabtra 'C not possible fur any use to the plaintiffs. It was also alleged that another spout 'Y' has been opened towards the 'chabutra', and it discharges water on 'chabubra' 'C. With regard to this item, it has been prayed that spout 'Y' be closed and as for spout 'Z' the defendant should be restrained from using same for any purpose except for discharging rainy water. It has also been the case of the plaintiff that the window 'X' has been newry constructed, and the Chhaja (Jhap) 2' in width has been consrueted over it They have also claimed the closure of the window, and the removal of the chhaja. Another averment in the plaint is that the plaintiffs have right of passage through the defendant's 'poly' 'E' 'chowk' 'I' and staircase 'F' to reach the roof of 'poly' 'D'. According to them, they have been using this passage from the time of their ancestors. They have prayed for rerpetual injunction against the defendant restraining him not to interfere with their right of passage through his 'poly', 'chowk' and staircase referred to above. The plaintiffs' suit was contested by the defendant Shyam Lal by him written statement dated 14/7/86 It was conteded by him that the plaintiffs have no share in the 'chowk'. He also denied the ownership of 'chabutra as alleged by the plaintiffs. It as equally controverted that the plaintiffs bavt any right of passage through his 'poly' 'E', 'chowk' 'I' and staircase '(sic)'. According to the defendant, the 'poly' 'D' is not the property of the plaintiffs. The defendant owns his house, and the 'chowk' upto line RQS shown in the map Some time back, the lncestors of the plaintiffs allowed the father of the plaintiffs to open his right of way to his Haweli, which is situated beyond the line RQS towards the south According to him. the plaintiffs have a right of passage from the south, and it was only as a matter of concession that Nanag Ram, the father of the plaintiffs, was permitted to open a way from his chowk' and the 'poly', which was once used as 'tatkhana' of the defendant.
(3.) THE learned trial Court framed 11 issues on 19.8.66 Issut No. 10A was added on 29 -1 -71 Two other issues i.e. 1A. and 5A were added by his order dated 12 -4 -71. Thereafter, the parties to the case adduced evidence in support of their contentions. No. documentary evidence was produced by either of them The learned trial Judge after having considered the evidence held that 'chowk' 'A' belongs to the platiffs; 'poly' 'D' fals in the ownership of the plantiff ; chowk' 'B' forms per of the share of the 'chowk' of the defendant and the stone -slab 'J' divided the two 'chowks' not tonally. Ha also fouad that the plantiffs have a right of passage through the plaintiffs' 'poly' 'E', 'chowk' 'I' and staircase 'F' He, however, did not accept the plaintiffs' case with repard to the window, as it was construced within the defendant's own land He ordered the removal of the 'chhaja' (jap). Use of spout 'Z' was restricted to the descharge of rainy water, and as regards spout 'Y', it was ordered that it should be used in a manner as not to allow the rainy water fall on the 'chowk. In this manner, the trial Judae dcreed the Plaintiff' suit Being gagged of the decree, the appellant fied an appeal. This was dealt with by the Additional Civil Judge Alwar. He agreed with the view taken by the learned Judge, and dismissed the appeal with costs It is against this decree that Shyam Lal has come in this Court.;