BHATT SHANTILAL NATHJI Vs. DAVE GAJANAND RANCHHOD

JUDGEMENT

(1.) This is a second appeal by the original defendants against the judgment and decree of the learned District Judge of Panchmahals decreeing in appeal the plaintiffs suit for a declaration that the Khadki land adjoining their house to the south is of their exclusive ownership that the defendants have a limited right of way to go to their house through the Khadki that they had no right to use the Khadki site as passage for their sweepers to carry night soil and for a permanent injunction to restrain the defendants from using the Khadki as way for their scavengers carrying night soil. The defendants contested the suit and contended that the plaintiffs were not the owners of the Khadki in question and that the Khadki was a public street and that in the alternative the defendants had a general right of passage or right of way through the Khadki. The trial Court found that the plaintiffs had failed to prove that the Khadki was of their exclusive ownership and therefore it held that the plaintiffs were not entitled to the declaration and injunction prayed for. It held that the suit Khadki was a part of the public street and that all the people irrespective of the owners of the houses situated inside the Khadki including the Bhangis had every right to pass through the Khadki without any objection. It therefore dismissed the plaintiffs suit.

(2.) In first appeal the learned District Judge held that the plaintiffs had proved their ownership of the Khadki land that the defendants had failed to prove that they had a right to use the disputed land as passage for their scavengers carrying night soil from their latrines. He therefore decreed the plaintiffs suit. Against this judgment and decree the original defendants have now come in appeal.

(3.) The points for determination in this second appeal are: (1) Whether the plaintiffs have proved their title to the Khadki and (2) Whether the defendants have the right to use the disputed Khadki as a passage for themselves and their scavengers carrying night soil from their latrines.