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Showing contexts for: common wall Window in Karan Singh vs Hoshiar Singh on 4 August, 2014Matching Fragments
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
**** RAMESHWAR SINGH MALIK J.
Present appeal, at the instance of defendant, is directed against the judgment of reversal, in a suit for injunction.
Brief facts of the case are that as per the undisputed site plan Ex.P-1, plaintiff was the owner of the plot marked as ABCD. It was the pleaded case of the plaintiff that he has left the open court yard ABJI for his own personal and exclusive use. Residential plot of the defendant-appellant was AGFE. Thus, dividing line between two plots was AE. It is also not in dispute that defendant was having his sitting room towards the dividing line i.e. AE. There was no ventilators or windows affixed by either of the parties in the common wall AE. However, since defendant demolished his sitting room and raised the fresh construction putting ventilators towards chowk of the plaintiff in the common wall AE, plaintiff was left with no other option except to file the present suit for injunction.
On the other hand, learned counsel for the respondent submits that a bare look at the site plan Ex.P-1 would show that the chowk ABJI was his own property. Defendant never claimed that he had been using the said chowk for any purpose. This open court yard was left by the plaintiff in front of his constructed house for his own use. Defendant has nothing to do with this chowk ABJI and he has no right to open ventilators or put windows in the common wall AE. He prays for dismissal of the appeal.
A bare comparison of the site plans put-forth by both the parties would show that the true picture has been given only in the site plan Ex.P-1. It is neither pleaded nor argued case on behalf of the defendant- appellant that he had also been using the chowk ABJI before the present litigation started. It is the common case of the parties that earlier there were no windows or ventilators in the common wall AE. Defendant demolished his sitting room and at the time of raising fresh construction, he put his ventilators and two windows in the common wall AE, for the first time. Although, defendant No.1 has also claimed that he has contributed in the expenditure for raising this common wall AE, yet there is no conclusive proof available on record to substantiate that aspect.
Be that as it may, this issue is not in serious dispute. The only contest between the parties is whether defendant was entitled to open his two windows in the common wall AE. Once the defendant failed to make out any case that he has any concern, even remotely, with the open court yard (Chowk) ABJI shown in the site plan Ex.P1, he had no right to tinker with the privacy of the plaintiff, by opening two windows in common wall AE, at the time of raising fresh construction. Having said that, this Court feels no hesitation to conclude that learned first appellate court had committed no error of law, while allowing the first appeal of the plaintiff and the impugned judgment and decree deserve to be upheld.