JUDGMENT :

MAHENDAR KUMAR GOYAL, J.:— This civil second appeal is preferred against the judgment and decree dated 31.8.2019 passed by learned Additional District Judge No. 4, Jaipur Metropolitan (for short the learned appellate court’) in Civil Regular Appeal No. 2/2013 (871/2014) whereby, while dismissing the appeal preferred by the appellants, the judgment dated 29.5.2013 passed by the learned Additional Civil Judge (Jr. Division), No. 3, Jaipur Metropolitan (for brevity “the learned trial Court”) partly decreeing the Original Civil suit no.214/1998 (77/97) filed by Smt. Shakuntala Kumari, the predecessor-in-interest of the respondents (for short the plaintiff) for permanent injunction, has been affirmed.

2. The relevant facts in brief are that the plaintiff filed a suit for permanent injunction against Shri Roop Chand Maheshwari, the predecessor- in-interest of the appellants (for short the defendant’) stating therein that she is owner of a haveli situated near office of Rajasthan Roadways, C-Scheme, Jaipur and towards its southern side, there is another property, popularly known as “tabela” under her ownership which was sold to various persons vide sale deed dated 24.11.1970. It was submitted that there are certain houses situated inside this “tabela” including house no. 26 of the defendant adjoining to which, there is a room, a part of her haveli and at the time of selling the “tabela”, the common passage in between the house of the defendant and her room was closed by raising construction of a pucca wall and the gates from the rooms under her ownership having opening in the house no. 26, were also closed by a brick wall separating the portion of the plaintiff and the defendant. It was alleged that the defendant is raising new construction demolishing his house and in its grab, he wants to encroach upon her property and wants to open windows, balconies and ventilation towards her house. It was stated that the defendant has no right to demolish the common wall and the plaintiffs construction existing thereon. Therefore, the decree as aforesaid was prayed for.

3. The defendant in his written statement, denying the averments made in the plaint, submitted that number of his house is C-21 and not 26. It was denied that room of the plaintiff is adjoining to his property. It was submitted that he has raised construction on the land under his possession without any encroachment on the plaintiffs property. It was further stated that the windows and ventilation were already existing in the subject wall. In the additional plea, it was submitted that in absence of a prayer for declaration, the suit simplicitor for injunction was not maintainable. Dismissal of the suit, therefore, was prayed for.

4. On the basis of pleadings of the parties, the learned trial court framed two issues including relief. After recording evidence of the respective parties, the learned trial court partly decreed the suit vide its judgment dated 29.5.2013 and the civil first appeal preferred thereagainst by the defendant has also been dismissed by the learned appellate court vide judgment and decree dated 31.8.2019.

5. Assailing the impugned judgment and decree, the learned counsel for the defendant submitted that the learned courts erred in partly decreeing the suit relying upon testimony of Shri Ajay Singh (PW1), the power of attorney holder for the plaintiff without her entering in the witness box. He further submitted that even otherwise also, the power of attorney did not authorise Shri Ajay Singh to depose qua the subject property as he has admitted during his cross examination that he was conferred no title over the subject property through it. Lastly, he submitted that in absence of a prayer for decree of declaration, t