JUDGMENT :- This appeal arises out of a suit for permanent injunction directing the defendant to construct a wall CG of he disputed room CEFG as shown in the plaint map upto the height of 7 ft. with a roof thereon with an alternative prayer that in case in the opinion of the Court the defendant could not be directed to construct the wall and the roof thereon the plaintiff might be allowed to carry out those constructions with a Duchhatti and a room on it which existed on the roof of the defendant from more than 20 years before the demolition of the disputed w All. The plaintiff further prayed that defendant be restrained by means of permanent injunction from making a wall in front of a Roshandan of the plaintiff which was in the first floor of his house.

2. The case of the plaintiff in brief was that the plaintiff owned a house ABCD in the sketch map attached with the plaint excluding the room shown as CEFG in the house which belonged to the defendant. Over this room the plaintiff had a Duchhatti and over the Duchhatti there was a room of the plaintiff in the first floor. His case was that the room of the defendant was 7 ft. long and 7 ft. high and over this room of the defendant there was a Ducbhatti of the plaintiff and over the Duchhatti stood his room in the first floor. He used to enjoy the vertical support of the defendant's wall for the purposes of his Duchhatti and the room over it. It was said that in the rains of 1958, the western and southern wall of the defendant's room fell down with the result that the roof of the defendant's room along with the Duchhatti and the plaintiff's room in the first floor came down which caused loss to the plaintiff.

It was alleged that in spite of request the defendant did not construct the wall of the roof of his room which had fallen down with the result that the plaintiff was unable to enjoy the use of the Duchhatti and, room above it. It was further said that the defendant was intending to make a wall adjacent to the Roshandan of the plaintiff shown by letter X in the map attached with the plaint as such the plaintiff filed the present suit praying for the relief already mentioned above.

3. The suit of the plaintiff was resisted by the defendant on the allegation that his room was 11 ft. high and not 7 ft. as alleged in the plaint. The defendant denied the existence of the Duchhatti or the room over it. He asserted that the room of his had fallen down 18 years or 20 years before the institution of the suit and that the plaintiff had no right of support and even if he had any that was lost by lapse of time. The defendant disputed the right of the plaintiff for directing the defendant to make the constructions as prayed for by the plaintiff. It was said that the Roshandan at X was in the joint wall of the parties and the plaintiff had no right to claim injunction in respect of the Roshandan aforesaid.

4. The trial Court framed relevant issues on the pleadings of the parties. It accepted the plaintiff's case and decreed the suit of the plaintiff for injunction as prayed for by him. But it directed that the constructions would be made at the first instance by the defendant within a period of two months from the date of decree at the expense of the plaintiff and in case the defendant failed to carry out the constructions aforesaid the plaintiff would be entitled to get it done through Court at his own expense. The defendant was further restrained permanently from making any wall or room in front of or adjacent to Roshandan as shown in the plaint map.

5. The defendant preferred an appeal which was heard by the Additional District Judge, Saharanpur. The learned Judge affirmed the decision of the trial Court on all points and dismissed the appeal with costs. The defendant has come up in appeal to this Court and the learned counsel for the appellant has put forth the following points for the consideration of this Court :

(1) The dominant heritage having been completely demolished section 45 of t

Click Here to Read the rest of this document