IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL SECOND APPEAL No. 57 of 2005 PURUSHOTTAM V/S KARUNA SHANKER & ANR Mr. RAKESH ARORA, for the appellant / petitioner Mr. A SAMDARIA, for the respondent Date of Order : 2.8.2007 HON'BLE SHRI N P GUPTA,J. ORDER ----- I have heard the learned counsel, have perused the impugned judgments, and have also perused the record. The learned lower appellate court has reversed the findings of the learned trial court and has decreed the suit. The plaintiff filed the suit for removing the construction of the latrine, erected by the defendant, towards the north of the plaintiff's house. It was alleged in the plaint, that the defendant has constructed the latrine on the public way, which is causing obstruction, and soak pit has been excavated adjoining the plaintiff's house, which is damaging the plaintiff's walls, and that the construction has been raised without permission. The defendants stated in the written statement, that the latrine has been constructed in the northern lane, but independent wall has been constructed, and that soak pit has been excavated 6 feet away from the plaintiff's house, and has been constructed after the permission of the Gram Panchayat. It was also contended, that it has been constructed at the place, for which permission was granted. The learned trial court found, that from Ex. A/1 to A/4, it is clear, that construction has been raised after permission, and the soak pit is 20 feet deep, on the open space, in front of the defendant's house, and it is not understandable as to how this soak pit is causing damage, or is likely to case damage to the plaintiff's house. It was also considered, that plaintiff's house is already dilapidated, and thus the suit was dismissed. Significantly, the learned trial court did not consider the aspect about the latrine having been constructed on the public road, despite the fact, that this aspect was covered by the issue no. 2. In appeal, of course the plaintiff filed the application under order 41 rule 27, and produced certain certified copies, obtained from the Panchayat, regarding the permission for constructing latrine by the defendant, and learned lower appellate court has taken them on record, and has found, that admittedly, the house of the defendant is shown by figure 'Z' in Ex. 3, which has a door of the west opening in the lane, which lane turns at 90 degree 2 towards the north, and house of the plaintiff is shown in the north by figure 'Y' in Ex. 3, and the latrine has been constructed at place 'X' therein, and that it has been constructed at a distance of about 3-4 feet, in further west of the defendant’s house and adjoining the plaintiff's house, and it was found, that lane is a public lane, and the construction obstructs the lane, which is for the use by public, and every member of the locality has a right to use every inch of the land, the plaintiff has right to open windows in this side, and the land on which the construction has been raised is neither land in the possession of the defendant, nor vests in the Panchayat, therefore, the finding of the learned trial court has been reversed and the suit has been decreed. It was contended by the learned counsel for the appellants, that the application under order 41 rule 27 was filed after a long delay of one year, since filing the appeal, and was filed to fill-in lacuna, which could not be permitted. Then it was submitted, that the latrine has been constructed at the place, for which permission was granted, being near the western door of the defendant's house, and therefore the impugned decree is liable to be set aside. I have considered the submissions, and find, that even apart from the documents produced along with application under order 41 rule 27, it is required to be considered, that the defendant's case was, that he has raised 3 construction with permission of Panchayat, and at the place which permission was granted, therefore, it was for the defendant to prove this fact, by producing necessary documentary evidence, as the matter of grant of permission is the matter of record, while even vide Ex. A/2, which is also one of the documents produced along with application under order 41 rule 27, objections were invited against allowing the defendant to raise construction of latrine near the western door of the defendant's house. Ex. 3 and the things shown therein, are admitted by the defendant while in the witness box. A look on the Ex. 3 shows, that even by naked eye, it is clear, that in the west of the defendant's house, there is a sizeable land, which has been found by the court below to be 3-4 feet, and the latrine, which is shown by figure 'X' therein, completely adjoins the plaintiff's house, and cannot be said to be in any manner adjoining the defendant's house, thus it is abundantly clear that the latrine has been constructed on the part of the public lane, and in absence of anything from the side of the defendant, to show, by permission, or by application filed by him for grant of permission, that the permission was granted for this place, it cannot be said, that the permission was granted for this place. A naked eye view of the Ex. 3 speaks volumes to support the plaintiff's case. Thus I do not find any error in the findings recorded by learned lower appellate court. The appeal thus does not involve any substantial 4 question of law, and the same is therefore, dismissed summarily. ( N P GUPTA ),J. /anil/ 5