DOSAN NOORMOHMED HASAN Vs. VAJIRBHAI ALIMAD AMI

JUDGEMENT

(1.) The plaintiffs who are brothers own and occupy their residential houses including the Anganwadi an open land bearing Gram Panchayat Nos. 960 937 936 961 and 962 situated in the locality known as Kui-vas in village Kanodar. Plaintiff No. 1 has been residing in the house bearing No. 960 which was purchased jointly in the names of all the plaintiffs and the remaining houses are owned and occupied by the Plaintiff No. 2 which abut on Fali or the chowk of their joint occupation and there exists a constructed portion used for urinal for the members of the plaintiffs family and there are pegs for tethering cattle in the said Fali. House No. 957 known as Vagodiyano-Mach of the defendant is situated to the north of the said Fali. The entrance of the house of the defendant abuts on the west. The contendent tried to put apertures doors or windows in the southern wall of his house. The plaintiffs therefore filed a Regular Suit No. 376 of 1972 in the Court of the Civil Judge (S. D. ) Banaskantha at Palanpur against the defendant for a permanent injunction to the effect that the defendant or his family members servants or agents should not open any apertures doors windows or ventilations on the southern wall of his house bearing Gram Panchayat No. 957. The plaintiffs further averred that the plaintiffs are Muslims and as such doors windows if constructed or made in the southern wall of the defendants house abutting on the plaintiffs land it would offend their right of privacy and enjoyment of that property. The plaintiffs therefore filed the suit claiming the aforesaid relief.

(2.) The defendant by his written statement Exh. 14 denied the claim of the plaintiffs contending inter alia that the plaintiffs has no right to prevent the defendant from opening any doors or windows on the southern wall of his house abutting on the street land. The defendant contended that the plaintiffs had no independent Maholla of their own in the Kui-vas and the land in the Kui-vas is part of the public street and as such the plaintiffs cannot claim the relief as claimed by them. The defendant also denied any right of privacy of the plaintiffs or their family members.

(3.) The learned Trial Judge after framing necessary issues that arose out of the pleadings and recording the evidence of the parties and after hearing the learned Advocates of the parties held that the plaintiffs had failed to prove that the southern wall of the defendants house No. 957 was of their joint ownership and that the open land to the south of it was of their exclusive ownership possession and enjoyment and as such he dismissed the plaintiffs suit. The plaintiffs being aggrieved by the judgment and decree of the Trial court preferred Regular Civil Appeal No. 34 of 1978 in the District Court Banaskantha at Palanpur. The learned District Judge Palanpur by his judgment and decree dated 30/11/1978 held that the plaintiffs had proved that the land to the south of the house of the defendants was in occupation of the plaintiffs and the same was of their ownership. The learned District Judge also held proved that the defendants action to open apertures including doors windows etc. in the southern wall of his house abutting on the plaintiffs property was likely to infringe the plaintiffs right. The learned District Judge therefore allowed the appeal setting aside the judgment and decree of the Trial court. The learned District Judge therefore decreed the plaintiffs suit declaring that the defendant the members of his family servants or agents are permanently restrained from putting any apertures doors windows or ventilations on the southern wall of his house bearing Gram Panchayat No. 957 more particularly described in para 9 of the plaint.