PATEL CHELABHAI BHAGVANBHAI Vs. MAFATLAL MULCHANDBHAI PATEL

JUDGEMENT

(1.) THIS appeal under Section 100 of the Code of Civil Procedure is at the instance of the original defendants against whom, the respondents- original plaintiffs have filed Civil Suit No.96 of 1979 for declaration and permanent injunction.

(2.) IT is the case of the plaintiffs in their suit that the plaintiffs are owners of a house constructed on Plot No.52. The front door of the house of the plaintiffs is facing western side and 5 ft open land in front of the house is of the ownership of the plaintiff. It is further averred that in the front of such 5 ft open land, there is 15 ft. width road and on other side of the road, i.e. on the western side of the house of the plaintiff, plot No.47 belonging to the defendants is situated. It is further stated that Plot No.47 is of the ownership of defendant No.1. Plot Nos.52 and 47 are on the land bearing Survey No.51, which was purchased in the year 1949 by about 60 persons, including the plaintiffs and defendant No.1 and it was decided that between plot Nos.6 to 10, 23 to 30, 41 to 45, 56 to 60, 11 to 15, 31 to 35 and 46 to 50, a road of width of 30 ft would be made available and the doors of the houses on the said plot shall be placed facing western side. It is further stated that it was agreed between the plot holders that the owners of plot Nos.11 to 15, 31 to 35 and 46 to 50 shall not place any door on the eastern side of the house i.e. on the back portion of their houses. According to such understanding, agreement was executed on 30.6.1979, whereon defendant No.1-owner of plot No.47 had signed along with all other plot holders. It is further case of the plaintiffs that as per the said agreement, defendant No.1 was not entitled to place any door on the east side of the house, so as to obstruct right of the plaintiffs to use road of 15 ft width. It is also case of the plaintiffs that defendant No.3 is real brother of defendant No.1 and defendant No.2 is wife of defendant No.3 and they had started making new construction in the house wherein they are trying to place a door on the east side of their house though they have already placed a door facing western side in their house. On plaintiffs raising objection to such attempt on the part of the defendants to place door facing the east side in their house, the defendants reacted with rude answer. The plaintiffs thus filed the suit to get declaration that the defendants have got no right to place doors facing the east side in their house on plot No.47 and they have got no right to commit breach of the agreement entered into between the plot holders. The plaintiffs also prayed for permanent injunction restraining the defendants from placing any door in the east side of their house and from creating any new right contrary to the agreement entered amongst the plot holders and to further restrain the defendants from causing any obstruction in the way of the plaintiffs from using the road of 15 ft width.

(3.) ON appreciation of the evidence available on record, learned Trial Judge came to the conclusion that agreement at Exh.101 dated 30.6.1979 was not signed by all plot holders, that the said agreement was in respect of immovable property and therefore, the same was required to be registered and the plaintiff is not entitled to claim any right on the basis of the unregistered agreement. Learned Trial Judge also came to the conclusion that there is no evidence as regards holding of the meeting nor even the plaintiff has produced minutes of the meeting, wherein decision to arrive at agreement was stated to have been taken. Learned Trial Judge also came to the conclusion that the agreement in question could not be enforced by single individual and other plot holders are not joined in the suit. Learned Trial Judge also observed that copy of the agreement was never given to the defendants and that there are other plot holders who have also not acted as per the agreement and therefore, it cannot be said that the defendants were only persons who did not act as per the agreement. Learned Judge further came to the conclusion that road of 15 ft in width is for common use of every plot holder and as per the agreement, if any plot holder commits any breach, such was required to be taken to the meeting of the plot holders and dispute was first required to be resolved by calling meeting of the plot holders. Learned Judge has also recorded that road of 15 ft in width has already vested with the Municipality and everybody has common right to make use of such road and the defendants having constructed their house after taking permission from the Municipality, cannot be said to have committed any breach of the agreement. Learned Judge lastly recorded that neither the Municipality nor any plot holder has objected to the act of the defendants of placing door on the back portion of their property. On the above such findings and reasoning, learned Trial Judge ultimately dismissed the suit by judgment and decree dated 28.8.1984.