GANGADHARAN Vs. MOMINIC GOMEZ AND OTHERS

JUDGEMENT

(1.) THIS second appeal is by the 1st defendant in a suit for permanent injunction which has been concurrently allowed by both the courts below. The respondents in this appeal who were also the respondents in the court below, are the plaintiffs 1 to 6 and the 2nd defendant. They were occupying a house V/81 put up by their ancestor, inside S. No. 1989/2 of the Ernakulam Town Municipality, on permission from its original owner Manuel Rodrigues vide Ext. I koolicharth dated 20 -6 -1093. In the partition which took place in the family of Manuel in or about 1104, all the space to the east of the house and, right up to the Market Road which formed the eastern boundary of the survey number, measuring 61/2 cents on the whole, fell to the share of Inaz Rodrigues while Mark Rodrigues similarly got the portion in the west The 1st defendant obtained assignment of this 6 per cents from Inaz under Ext, VI dated 22 -11 -1950 and soon after, set about to erect his western fence close to the eastern wall of the respondent's house. The respondents who had till then been using the whole space in front of that house, as a front yard and also as a means of access to the Market Road, thereupon sought relief in this suit by way of permanent injunction restraining the 1st defendant. The 1st defendant contested the suit on the footing that the plaintiff's rights in the paramba were confined, if at all, to the site on which the house stood and the 1st defendant or his assignor were not in any event bound to accommodate the respondents to any extent so far as the 61/2 cents space in the front, was concerned. The first defendant also pleaded that a pathway parallel to the southern fence though on the other side, had been specially provided by arrangement between Inaz and Mark, for the purpose of egress and ingress of the respondents to the Market Road and there was accordingly no question of any way of necessity remaining.

(2.) THE evidence furnished by the commissioner in the case showed that the respondents had enclosed their house by a fencing so as to leave some space all round. The eastern fence was about 23 links from eastern wall of the house and practically abutted the Market Road while the southern fence was put up 14 links away from the wall on that side. The house had only two doors opening to the outside, one on the northern wall and the other on the southern wall of the kitchen which was on the western side of the house. There were no windows except two holes on the north wall, the shutters of which could not be opened fully on account of the fence on the northern side. The lower end of the roof on the eastern side was about 6 feet from the ground so that if a normal fence 5 feet 4 inches in height was put up close to the eastern wall of the house, very little space would be left for the passage into the house, of light and air. Finally, there was no pathway to the Market Road on the farther side of the southern fence and available for the use of the respondents, as alleged by the 1st defendant. Basing himself on these facts the learned Munsiff directed that 2 koles width of space should be left on the eastern side when the 1st defendant put up his western fence and he should also provide a pathway 11/2 koles in width along his southern boundary fence and granted permanent injunction decree accordingly. The learned Judge in appeal by the 1st defendant, upheld the findings of the Munsiff and in the result confirmed his directions and hence this second appeal.

(3.) WHEN the case came up in this Court in the first instance, Learned Counsel for the appellant submitted that the courts below had not the benefit of a reference to a sale deed executed by Inaz, the 1st defendant's assignor in favour of Mark, the present landlord of the respondents, in respect of 3/4 cents of property on the other side of the southern fence for the specific purpose Of providing a pathway for the benefit of the respondents, as alleged by the 1st defendant. This sale deed had not been filed in the trial court and though filed in the court below, had not been marked. this Court therefore remanded the case for revised findings of the courts below on that account. But they have found no reasons for a revision of their prior findings.