SBC REVISION PETITION NO.63/2002 – SOHAN LAL V/S LRS. OF NATHU LAL.. : JUDGMENT DTD. 26.2.2009 1/5 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL REVISION PETITION NO.63/2002 Sohan Lal versus Legal Representatives of Nathu Lal PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.Suresh Shrimali, for the petitioner. Mr.R.S.Mankad, for the respondents. DATE OF JUDGMENT : 26th February, 2009. JUDGMENT 1. This revision petition is directed against the impugned order of the Executing Court dtd.6.9.2000 passed on the application under Order 21 Rule 32 C.P.C. by the decree holder. The decree in favour of the respondent Nathu Lal was passed on 1.8.1996 in Civil suit No.170/1993 upheld in appeal by the appellate Court on 10.11.1997 directing that the decree holder will have easementary right of fall of SBC REVISION PETITION NO.63/2002 – SOHAN LAL V/S LRS. OF NATHU LAL.. : JUDGMENT DTD. 26.2.2009 2/5 water from top of his house on the land of the defendants and the plaintiff decree holder shall be entitled to raise his construction in future in such manner to enjoy that right. 2. The defendant – judgment debtor appears to have raised construction of the house in such a manner which according to the decree holder has obstructed the said easementary right and therefore, the present application under Order 21 Rule 32 C.P.C. was filed by the decree holder which came to be allowed by the learned Executing Cout vide order dtd.6.9.2000 and by this order, the Court below has directed the judgment debtor – present petitioner before this Court to remove the construction at his own cost so as to allow rainy water of decree holder's property to fall on the land of the judgment debtor. 3. Mr. Suresh Shrimali, learned counsel for the petitioner – judgment debtor submitted and tried to explain with photographs produced with the additional affidavit filed by the present revision petitioner that as a matter of fact, the construction raised by the judgment debtor on his own land was never restricted by the Courts below while passing the decree in question and the construction SBC REVISION PETITION NO.63/2002 – SOHAN LAL V/S LRS. OF NATHU LAL.. : JUDGMENT DTD. 26.2.2009 3/5 raised by the petitioner – judgment debtor has been raised in such a manner so as to leave passage for rainy water of the decree holder to pass through that 'nali (passage)' left by him. He also submitted that as a matter of fact, the entire construction of the decree holder on the plot of land measuring 60 x 40 ft. is lying in shambles for last many years and none of the houses has even a roof top and none of the plaintiffs – decree holders is living at the said place. From the photographs produced with the additional affidavit also, it appears that the said property is lying absolutely in demolished condition and does not appear to be habitated by anybody. This factum was not even disputed by the learned counsel for the decree holder. 4. The learned counsel for the petitioner – judgment debtor also relied upon the decision of Hon'ble Supreme Court in the case of Surinder Kumar and another V/s Ishwar Dayal and another reported in 1996 DNJ (SC) 185 in which the Court held as under: “4. The Courts below, therefore, were wrong in proceeding u/O 21 R.32 CPC to execute decree which did not exist. It is contended by the respondents that in SBC REVISION PETITION NO.63/2002 – SOHAN LAL V/S LRS. OF NATHU LAL.. : JUDGMENT DTD. 26.2.2009 4/5 the sale deed executed by the appellant, they have mentioned the wall to be the joint wall. In view of the admission made by the respondents in the evidence, though the recitals may be there, the parties appear to have agreed for the altered situation and in view of the altered situation when previous joint wall is admittedly of 1-1/2' width and the new wall with only 9” width, the appellants have reduced the width of their wall and opened the window in their own land for enjoyment of easement of necessity of air. Accordingly, we hold that the executing Court and the High Court were clearly in error in directing execution of the old decree which no longer existed and the closure of the window.” 5. In the present case also, it appears that in view of the subsequent development in the form of construction raised by the petitioner – judgment debtor on his own land which was never restricted by the Courts below while passing the decree in favour of the respondent and said construction has been so raised on his own land so as not to cause any obstructions in free flow of water from the SBC REVISION PETITION NO.63/2002 – SOHAN LAL V/S LRS. OF NATHU LAL.. : JUDGMENT DTD. 26.2.2009 5/5 'Nali' (passage) left open by the judgment debtor there is no breach of the decree. Even otherwise, it appears to the Court that the decree holder is not living there and the property of the decree holder is presently lying in the absolutely demolished condition so as to give any continuous easementary right as decreed in his favour by the Courts below. In these circumstances, it appears to the Court that the learned Executing Court below has erred in directing demolition of the construction by the judgment debtor, upon the application under Order 21 Rule 32 C.P.C. 6. Consequently, this revision petition of the judgment debtor is allowed and the impugned order dtd.6.9.2000 is set aside. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.4. Ss/-