BY THE COURT:

1. This second appeal is arising out of the judgment and decree dated 12.05.2008 passed by the learned Additional District Judge No.1, Jodhpur in Civil Appeal No.1/2008 “Virdi Chand Bohra S/o Asu Lal Bohra Vs. K.P. Sharma S/o Puran Mal Sharma & Ors.” who dismissed the appeal filed by the present appellant-plaintiff and affirmed the judgment and decree dated 29.05.2006 passed by the learned Civil Judge (Junior K.P. Sharma S/o Puran Mal Sharma & Ors. Division) No.2, Jodhpur in Civil Original Suit No. 328/1999 “K.P. Sharma Vs. Urban Improvement Trust & Ors.” and Civil Original Suit No. Virdi Chand Bohra Vs. K.P. Sharma & Ors.” by which, the learned Civil Judge (Junior Division) had dismissed the suit filed by the plaintiff-Virdi Chand Bohra seeking demolition of the illegal construction raised by the defendant-K.P. Sharma in the set back area of the house in question was dismissed, and the cross-suit filed by the defendant-K.P. Sharma seeking permanent injunction for not removing the questioned construction was decreed in his favour.

2. The present second appeal has been filed by the appellant-plaintiff-Virdi Chand Bohra aggrieved by the concurrent rejection of his suit by the Courts below, while decreeing the cross-suit filed by the defendant-respondent-K.P. Sharma, a retired Professor of the Jodhpur University.

3. Having heard the learned counsels for the parties, the following substantial question of law is framed for consideration by this Court in the present second appeal and the second appeal itself is being disposed of by this order with the consent of the learned counsels for the parties.

‘Whether the Courts below were justified in dismissing the suit for injunction filed by the plaintiff Virdi Chand Bohra, while decreeing the cross-suit filed by the defendant-K.P. Sharma in K.P. Sharma S/o Puran Mal Sharma & Ors. view of admitted illegal construction of a garage and room with porch in the set back area and then, getting the same compounded by the authorities of the Municipal Corporation?”

4. The dispute arose in the circumstances that in the Abhaygarh Scheme, Ratanada, Jodhpur both the parties are neighbours having residential corner plot No. 5 of the defendant- K.P. Sharma admeasuring 45 x 70 ft. and adjacent plot No. 6 of plaintiff-Virdi Chand Bohra admeasuring 35 x 70 ft. The dispute arose because of the alleged illegal construction raised by the defendant — Prof. K.P. Sharma in the set back area of 15 ft. wide, in which, he raised a wall, room and porch ahead of that construction by the defendant-Prof. K.P. Sharma blocked, the north-east view, light and air of the plaintiff-Virdi Chand Bohra.

5. This Court perused the map, Commissioner's Report and the site photographs, while hearing the arguments of the learned counsels for the parties. From the record, it is clear and as admitted by the defendant-Prof. K.P. Sharma that the construction in question was made irregularly and beyond the originally sanction/permission granted by the respondent- defendant-Municipal Corporation, Jodhpur for constructing his house but the defence of the defendant-Prof. K.P. Sharma before the Courts below was that such illegal construction was got compounded by the defendant-Prof. K.P. Sharma in the K.P. Sharma S/o Puran Mal Sharma & Ors. Meeting of the Compounding Committee of the Municipal Corporation, Jodhpur under the provisions of Rajasthan Municipalities [Compounding & (Compromising) of Offences] Rules, 1966 held on 05.02.2001. The said compounding was approved on payment of Rs.1539/- by the defendant-Prof. K.P. Sharma which was deposited vide Receipt No.29 dated 22.05.2001 for a sum of Rs.1539/- and the said decision of compounding was also approved by the State Government vide Communication dated 11.05.2001 as mentioned in para 22 of the Trial Court's order. The said decision of compounding was taken by the Compounding Committee despite the objection and dissent note given by the then Executive Officer of the Municipal Corpo