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2006 DIGILAW 1140 (RAJ)

LAXMAN v. AMARU @ AMAR CHAND.

2006-04-10

PRAKASH TATIA

body2006
Judgment ( 1 ) HEARD learned counsel for the parties. The plaintiff/appellant filed a suit for permanent injunction seeking mandatory injunction against the defendants on the ground that in the south side of the plaintiffs house, there are plaintiffs doors, windows and ventilators and they are opening since last more than 40 years. The defendants/respondents raised construction on 2. 3. 1985 and closed the plaintiffs doors, windows and ventilators. By this, the defendants have infringed the plaintiffs right of air and light and, therefore, the plaintiff is entitled to decree for mandatory injunction as the plaintiff has acquired easementary right. ( 2 ) THE defendants submitted written statement and contested the suit. The issues were framed and the two courts below after considering the oral evidence produced by the plaintiff held that the plaintiffs three witnesses gave three different versions and the plaintiff failed to prove that there is any lane in existence towards the south of the plaintiffs house. ( 3 ) THE appellant/plaintiff produced one patta, copy of which is placed on record in this second appeal as Annex. 1. According to learned counsel for the appellant, it is clear from the plaintiffs patta (Annex. 1) that in the south of the plaintiffs house, there is a blind lane and according to learned counsel for the appellant, this is a public lane and its existence is given in the public document i. e. Patta. The first appellate court committed serious error in not relying upon this document. ( 4 ) I have considered the submissions of learned counsel for the appellant and perused the facts of the case and record and the reasons given by the two courts below in their respective judgments and decrees dated 3. 12. 1992 and 11. 12. 2000. ( 5 ) IT is clear from the facts of the case that the issue before the courts below was based on question of fact and the two courts below after appreciation of evidence found that the plaintiff himself was not clear about his doors, windows, etc. The witnesses produced by the plaintiff also have not supported the plaintiff fully and ave contradictory statements. The witnesses produced by the plaintiff also have not supported the plaintiff fully and ave contradictory statements. So far as patta is concerned, the facts mentioned in the plaintiffs patta is not binding on the defendants, therefore, if the said document was not relied upon by the first appellate court, the first appellate court has not committed any error of law. ( 6 ) IN view of the above, I do not find that any substantial question of law arises in this appeal, therefore, this appeal deserves to be dismissed, hence, dismissed.