KAPILABEN DAHYABHAI Vs. VITHAL PRASAD MANEKLAL BHATT

JUDGEMENT

(1.) BY way of this appeal under Section 96 of the Civil Procedure Code, the original plaintiffs " present appellants have challenged the judgement and decree dated 10.01.1989 passed by the City Civil Court, Ahmedabad in Civil Suit No. 2271 of 1983 whereby the trial court dismissed the suit.

(2.) IT is the case of the appellants that the defendant no. 1 is a tenant of the appellant's premises on the ground floor which is used for storing padiya and patralla leaves. The defendant no. 1 sits on the otta and sells the same. IT is the case of the appellants that there is an open place adjacent to the southern wall of the room and that for the last three to four months of the date of filing of the suit, the defendant no. 1 started storing his goods near the said southern wall. The goods are piled up in bundles. IT is further the case of the appellants that the defendant no. 1 has encroached upon the public street and they also apprehend that if the stored leaves catch fire incidentally the appellants are likely to suffer loss. Therefore, on the ground of alleged encroachment and nuisance, the appellants filed suit before the trial court. The trial court dismissed the said suit after hearing the parties. Being aggrieved by the said order, the present appeal is preferred.

(3.) FROM the records it is borne out that the appellants " original plaintiffs had mainly contested their claim on the ground of the alleged obstruction on a public street and for a mandatory direction that if anything in nature of padiya and patralla leaves are placed by them near the southern wall of the plaintiffs' property, they should be required to be removed. In this context, no person from the neighbourhood was examined by the appellants to the effect that they find it difficult to pass by or that the placement of the leaves by the defendants obstructs their way or causes any hindrance or nuisance. It is borne out from the evidence that whenever the goods are received by the defendant no. 1 at the tenanted premises, initially before the storage of the leaves they have to be kept in an open space for sometime before storing in the room. This aspect was not controverted by the appellants. Moreover, the trial court also found the point of moisture content in the leaves so as to protect them from getting burnt in favour of the defendants which went unsubstantiated. The appellants also could not substantiate their plea that they have any right created in their favour to ask for the relief of removal of alleged obstruction. Considering all these aspects the trial court came to the conclusion that the appellants have no right to seek relief by way of suit regarding the storage of goods in an open place.