The central legal point established is that in a property dispute, if the defendant has no right to raise or retain constructions on the plaintiff's wall without consent, the court may decree a mandatory injunction for their removal.

ORDER :

Sudhir Agarwal, J.

1. Heard Sri K.M. Garg, learned counsel for appellant, Sri Vinod Swaroop, learned counsel for respondent and perused the material available on record.

2. This is defendant's appeal under Section 100 CPC arising from judgment and decree dated 17.12.1979 passed by Sri Ikramul Bari, IVth Additional District Judge, Bijnor in Civil Appeal No. 343 of 1977 whereby appeal was dismissed and judgment and decree dated 13.08.1977 passed by Sri Phool Singh, Munsif Nagina in Original Suit (hereinafter referred to as “O.S.”) No. 57 of 1973 has been confirmed.

3. Plaintiff-respondent instituted aforesaid suit alleging that on his wall, defendant has raised constructions of Chhajja (overhanging roofing), Chaukhat (doorpost) and Almirah which should be removed and a mandatory injunction to this effect be issued.

4. Trial Court formulated following four issues:

“(i) Whether the plaintiff or the defendant is the owner of the wall in suit?

(ii) Whether the defendant constructed Almirah, door and other construction in dispute are new as alleged by plaintiff?

(iii) To what relief, if any, is the plaintiff entitled?

(iv) Is the suit undervalued and the court fee paid insufficient? If so, the correct valuation and court fee?

5. Issue1 was answered against defendant-appellant and it was held that disputed wall in suit belongs to plaintiff and not to defendant appellant. Hence, issue1 was answered against defendant-appellant. Thereafter, issue2 was answered by holding that aforesaid disputed constructions belongs to defendant and he had no right to raise and retain such constructions over plaintiff's wall. Consequently, suit was decreed vide judgment dated 18.08.1977 and operative part of said judgment reads as under:

^^okn Áfroknuh ds fo:) ifjO;; lfgr vkKfIr fd;k tkrk gSA Áfroknuh dks vkns'k fn;k tkrk gS fd og f'kdk;rh fuekZ.k ,Dl&4 nhokj ij cus Nttk pkS[kV vyekjh dks nks ekg esa gVk ys vkSj ,Dl&okbZ nhokj ij c<+kdj cuk;k fuekZ.k tks fd ekufp= x@19 esa nf'kZr dks gVkdj nks ekg esa n[ky oknuh dks ns nsA vU;Fkk fu"iknu esa muds O;; ij n[ky fnyk;k tk;sxkA ekufp= x 19@2 fMxzh dk Hkkx jgsxkA**

“The suit is decreed against defendant with costs. She is directed to remove, within 2 months, constructions complained of: Chhajja (overhanging roofing), Chaukhat (doorpost) and Almari (shelf) constructed on the wall shown by X4 and by removing the protruding construction on the wall XY, which is shown by Ga/19 in the site map; its possession be given to the plaintiff within 2 months otherwise the possession shall be delivered to the plaintiff at her (defendant's) expenses during the course of execution. Site map Ga 19/2 shall be part of the decree.”

(English Translation by Court)

6. Defendant-appellant preferred Civil Appeal No. 343 of 1977 which has been dismissed by Lower Appellate Court (hereinafter referred to as “LAC”) vide judgment and decree dated 17.12.1979 concurring with the findings recorded by Trial Court.

7. This appeal was admitted on following substantial questions of law :

“Whether on the findings of the Court below, it was just and proper to decree the suit for mandatory injunction instead of awarding compensation to the plaintiff-respondent”

8. Learned counsel for appellant submitted that constructions were raised much earlier but when questioned, could not dispute that since issue of ownership of wall has been decided by both the Courts below in favour of plaintiff-respondent, defendant-appellant had no right either to raise any construction or to maintain or retain such constructions even if, the same are raised, without consent of the owner, on the wall of plaintiff. He also could not show any law to justify that an owner of a wall can be compelled to retain such constructions and must accept only compensation from defendant. Therefore, aforesaid question is answered against defendant-appellant.

9. No other point has been argued.

10. Appeal lacks merit and is, accordingly, dismissed.