JUDGMENT
Sunil Ambwani, J.
1. Heard Shri R.N. Singh, senior advocate assisted by Shri Anshu Chaudhari for appellant and Shri R. S. Misra for respondents.
2. Shri Shyam Sunder-the plaintiff filed O.S. No. 262 of 1970 with the allegation that the house described by letters ‘A, B, C, D” at the foot of the plaint belongs to him, and is his ancestral house. The house belonging to Pateshwari towards south of his property was sold to Kaushal Kumar and Sarwan Kumar sons of Bhagwati Prasad-defendant Nos. 1, 2 and 3 on 8.9.1970. The defendant No. 3 illegally demolished plaintiffs wall ‘DY’ with the help of a peson and took away the tin sheets and bricks of the plaintiff’s varandah without any right. On a complaint, the police did not take any action and that since the defendants were further threatening to take possession of the southern portion of his house, a decree of permanent injunction be passed restraining defendants from interfering plaintiffs right and damages of Rs. 1,800 for demolition of his wall and removal of bricks and tin sheets.
3. The defendants denied the plaint allegations and the site plan given in the plaint. They claimed the southern portion upto line ‘XY’ as their house. The ancestor of the defendants was tenant of Raja and they had constructed a double storied pucca house after purchasing it from the zamindar and that the house towards south from the ‘XY’ to the line ‘AB’ belong to Smt. Murta Devi, mother of defendant Nos. 1 and 2. She was also impleaded as defendant No. 4 and filed written statement with same contention.
4. Smt. Murta Devi filed O.S. No. 134 of 1974 with the allegation that house A,B,E,F in the plaint belonged to defendants No. 1 to 7. The house south of the line ‘AB’ shown by letters A,B,Z,X belonged to plaintiff and the house towards south of the line ‘XZ’ and the land shown by letters C,D,X,Z belonged to the plaintiffs sons Kaushal Kumar and Sarwan Kumar. The defendants demolished wall A,P and started construction of a stair case. A case under Section 107/117, Cr. P.C. was initiated and a case of theft against the plaintiffs husband was initiated by the defendants. Since the defendant was not prepared to restore the plaintiffs tin sheets and were not prepared to close the door L, she prayed for mandatory injunction for return of the tin sheets, drum etc. and for closing door L. She also claimed possession in case she found out of possession from any portion of the house in suit.
5. Both the suits wee connected and Jointly tried. The trial court found that plaintiff Shyam Sunder in O.S. No. 262 of 1970 was entitled to a decree of Rs. 1,800 and dismissed O.S. No. 134 of 1974 filed by Smt. Murta. The Civil Appeal No. 264 of 1978 was filed by Smt. Murta and that defendant-Kaushal Kumar and others filed Civil Appeal No. 259 of 1978. the appellate court allowed both the Civil Appeals and dismissed O.S. No. 262 of 1970 filed by Shyam Sunder with cost and decreed O.S. No. 134 of 1974 filed by Smt. Murta Devi with the following findings:
In this way it is amply proved that the defendants’ house includes the disputed portion of the house. In this connection, it was pointed out that in para 20 of the written statement filed by Shyam Sunder in the O.S. No. 134 of 1994 Smt. Murta Devi v. Shyam Sunder and Ors., it was clearly admitted that at the place E.F.X.Z., there was titled house which the father of the defendants purchased from Raja Sripati Singh. P.W. 3 Chand Shah has admitted in para 19 of this cross-examiantion that at the site of the double storey of Niranjan Lal there was the house of Raja Sahab in which Banshi Dhar father of Niranjan Lal was tenant. P.W. 1 Shyam Sunder also admitted in paras 19, 21 and 22 that his father obtained from the Raja Sahab the portion of the house in which he was a tenant. In this state of evidence it is fully proved that the disputed portion of the constructions is part and parcel of the house of the defendants and Smt. Murta Devi. It cannot be part and parcel of the house of Shyam Sunder.”….Having considered the entire evidence in the light of the authorities relied upon by the parties counsel I am of the opinion that mere wrong description of area or length or breadth should not be made decisive of title of a party. Even if there is some land which has been included both in the sale deed obtained by Smt. Murta and that obtained by Pateshwari is immovable for the purposes of these appeals because Pateshwari was father in law of Smt. Murta and there is no dispute inter se between them now. The fact remains that in both these sale deeds executed by Sri Sripat Singh one in favour of Pateshwari and the other in favour of Smt. Murta Devi the northen boundary was given as house of Banshi Dhar. The length and breadth of the house of Banshi Dhar has to be determined on the basis of the document obtained by him and for the reasons given above I am of the opinion that Shyam Sunder’s pucca house is on the land obtained by his ancestors and the disputed portion which lies towards south belongs to Kaushal Kishore and Smt. Murta…. Having given my careful consideration to the entire evidence on this point I am of the opinion that the door has been recently opened and it has to be closed as claimed by Smt. Murta Devi in her plaint. As regards the partition wall which has been claimed to be demolished in the plaint of Smt. Murta Devi the learned Munsif has mentioned in his inspection note paper No. 114C that this is not a wall but only a collection of bricks in a shape of wall and it is also an attempt on the part of the plaintiffs to create evidence of their possession and title over the disputed portion of the house. This has also to be demolished.
Following substantial questions of law was framed by the Court:
(i) Whether the lower appellate court is justified in decreeing the suit without upsetting the finding recorded by the trial court that the suit is barred by time?
(ii) Whether the lower appellate court was justified in not deciding the plea taken specifically in the written statement that the zamindar Sripat Singh had no right in the land which could have been sold by him?
(iii) Whether the lower appellate court was justified in ordering the closure of the door which was existing in the wall of the appellant without holding that the same has infringed the right of privacy.
6. Shri R.N. Singh, learned senior counsel appearing for appellant submits that the plaintiff must succeed on the strength of his own title. He relies upon Judgment in Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. AIR 1954 SC 526; Dhanya Kumar Jain v. Rajendra Prasad and Anr. and Munni Devi v. State and Anr. 1983 ALJ 509. He submits that where the possession was claimed on the basis of purchase from ex-zamindar and there was only the remnants of the house, Section 9 of the U.P. Act No. 1 of 1951 will not be attracted. He further submits that for relief of permanent injunction the plaintiff must affirmatively establish the rights on the basis of which he claims to restrain the defendant from doing any act.
7. Shri R.N. Singh states that every person has right to open window as he likes. He may even demolish the wall. His neighbour cannot compel him to make a wall or close the window. The neighbour may protect his privacy by making his own wall Abdul Sattar v. Jeet Lal AIR 1976 SC 538. The zamindar Sripat Singh has no right in the land. There was no plea of infringement of the right of privacy and therefore the lower appellate court could not have directed closure of the wall.
8. Shri R.S. Mishra, on the other hand, states that once the parties have led evidence in the cross suit, the question of burden of proving fades into insignificance. The appellate court considered the entire evidence and held that mere wrong description of the area or length or breadth should not be decisive title of the party. Some land was excluded in both the sale deed obtained by Smt. Murta and by Pateshwari and that it was immediately for the purpose of the case whether Pateshwari was father-in-law of Smt. Murta. There was no dispute between them. Both the sale deeds give the house of Banshl towards northern boundary. Shyam Sunder’s house was on the land obtained from his ancestor and that the disputed portion towards south belongs to Kaushal Kishor and Murta.
9. I have considered the submissions and gone through the record. The trial court found that Pateshwari Ram purchased the land with the length 53″ x 4′ and sold 63″ x 4′ towards west. He has shown the width of the land to be 15′ towards east. He however sold only 14″ x 3′ towards the western boundary. He as such was not in a possession of the land which was more than 5 mtrs. in width and since Pateshwari has not claimed any further, he would be taken to have given up his right in the remaining land. Smt. Murta Devi never took steps to claim the land. The defendants claimed to be in possession since 1993 on the disputed portion of the house. Shyam Sunder, Smt. Murta Devi could not prove even the adverse possession over the property.
The appellate court came to conclusion that both sale deeds executed by Shri Sripat Singh, one in favour of Pateshwari and other in favour of Smt. Murta Devi gives the house of Banshidhar towards the northern boundary and that the length and breadth of the house of Banshidhar has to be determined on the basis of document obtained by him and not by any other witness. The door was recently opened and closed as claimed by Murta Devi. In the inspection note of the Munsif, it is clearly mentioned that there was no wall but only collections of bricks in the shape of wall.
10. All these findings recorded by the appellate court are clear findings of fact which do not call for any interference in the second appeal. Both the second appeals are accordingly dismissed.
