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Judgment
Deepak Gupta, J.—By means of this petition under Article 227 of the Constitution of India, the Petitioner has prayed that the orders of both the Courts below whereby they have refused to grant interim injunction be set aside.
Briefly stated the facts of the case are that the Petitioner (hereinafter referred to as the ''Plaintiff'') claims that he had constructed a house and alongwith the house, there is a projection (Chhaja) akin to a ''Varandah'' which is projecting beyond the outer wall of the house. The Plaintiff claims that the Respondent-Defendant is now raising construction on the land below the Chhaja and he be restrained from raising this construction. The Plaintiff also claims that he is owner in possession of the said land.
The Defendant does not deny the existence of the Chhaja. According to him, the Plaintiff constructed Chhaja, in question, about 20 years back with the consent of the predecessor-in-interest of the Defendant. However, the Defendant has taken a plea that as far as the land underneath the Chhaja is concerned, the same belongs to him and is not owned by the Plaintiff at all.
Both the learned Courts below have refused to grant any injunction in favour of the Petitioner on the ground that as per the inquiry conducted, it has been found that it is the Defendant who is in possession of the land below the Chajja and that he had already raised construction of a wall upto the height of 51/2 feet which is about 15 feet long.
Sh. Narender Sharma, learned Counsel for the Respondent submits that even a roof has been made there. It is also apparent that the wall which was constructed was about 51/2 in height but it was still about 5 feet below the ground of the Plaintiff. Therefore, it is apparent that there is a difference of at least 101/2 feet from the Chajja to the ground. Since substantial construction has already been raised, the Defendant can complete the same so long as he does not in any manner damage the Chajja. It is however, made clear that any construction raised shall be at the risk and cost of the Defendant and in case the suit is finally decreed, he shall remove the same without claiming any equity in this behalf.
The petition is disposed of in the aforesaid terms. No order as to costs.