RSA No.3554 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

RSA No.3554 of 2011

Date of Decision: February 02, 2012

Mohinder Singh

.......Appellant

Versus

Surmukh Singh and others

.......Respondents

CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA

Present:

Mr.Puran Singh Rana, Advocate for the appellant.

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TEJINDER SINGH DHINDSA, J.

The defendant-appellant is in second appeal before this Court.

2.

Briefly stated, the plaintiff-respondents instituted a suit for

mandatory injunction directing the defendant to remove the roof put on

street 'S-S1' and 'Y-Y1' whereby he had connected the first floors of his

houses and thereby covered the public street. It was pleaded that the

defendant had got four houses and these houses were corner houses in the

intersection of two streets running from East to West and the other running

from North to South. The defendant had covered the street by constructing

roof in such a manner that the roof of all his houses was interconnected. As

per site plan produced on the file as Exhibit P1, it was shown that the house

of plaintiff, Lal Singh, is adjacent to one of the houses of the defendant and

the house of plaintiff, Ajaib Singh, adjoins the other house of the defendant.

The said roof that had been constructed by the defendant was at a level of

10' and accordingly, the trucks/trolleys loaded with 'Toori' upto the height

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of 15', which earlier used to pass through the streets without any

obstruction, now faced the apparent obstruction. It was pleaded that the

defendant had constructed such roof in terms of connecting the roof of his

four houses and thereby covering a public street by taking advantage of his

proximity with the Sarpanch of the Gram Panchayat. It was further pleaded

that since the houses of the plaintiffs adjoin the houses of the defendant and

by virtue of such construction of roof, it has resulted not only in the

obstruction of the loaded vehicles passing through the street but had also

impaired the free flow of light into their respective houses. Repeated

requests have been made to the defendant to remove such construction and

even the Gram Panchayat had been requested to take suitable corrective

action but having evoked no response, accordingly, the suit had been filed.

3.

The suit was contested by the defendant by setting up a

preliminary objection as regards maintainability of the suit by asserting that

it was hit by the provisions of Section 91 of the Code of Civil Procedure.

On merits, it was pleaded that plaintiff No.2 had not been residing in the

village for the last four years and, in fact, he was residing at village Tewar.

Likewise, it was pleaded that even plaintiff No.1 was, in fact, residing at

village Cholta and a school was being run by a tenant in a part of the house

and certain other tenants were residing in the remaining part of the said

house. The defendant, however, did not deny the fact of raising the

construction and having covered the street so as to interconnect the roof of

his houses. Defendant also set up a plea that since no objection had been

raised at the time of construction, the plaintiffs would now be estopped in

law from filing the suit. The defendant also gave various instances of the

villagers having constructed the roof over the street and stated that such was

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the practice in the village.

4.

Upon the pleadings of the parties, the following issues were

struck by the trial Court:

1. Whether the plaintiff is entitled to mandatory injunction as

prayed for? OPP

2. Whether the suit is barred by provision of section 91 CPC?

OPD

3. Whether the suit is not maintainable?OPD

4. Relief.

5.

The suit of the plaintiffs was decreed in their favour and against

the defendant for the relief of mandatory injunction directing the defendant

to remove the roof as shown in the site plan, Exhibit P1, on the street mark

as 'S-S1' and 'Y-Y1'