PATEL BACHUBHAI LAKHMANBHAI Vs. MANILAL FULCHAND PARMAR

JUDGEMENT

(1.) THIS appeal is at the instance of the original plaintiffs who filed Regular Civil Suit No.146 of 1979 against respondent - Manilal Fulchand Parmar (original plaintiff) who since died pending the appeal, his heirs are brought on record. Suit is for mandatory injunction and for permanent injunction.

(2.) CASE of the plaintiffs is that they are owners and in possession of the land bearing Survey No.776 and land bearing No.809 is on eastern side and adjacent to the land of the plaintiffs and is of the ownership of the defendant. Said land of the defendant is non -agricultural open land (Vada land). It is further case of the plaintiffs that the defendant had started making construction on the said vada land and constructed one wall on its western side touching the land of the plaintiffs. It is further averred by the plaintiffs that the defendant without leaving any margin from the land of the plaintiffs started construction of wall on 30.5.1979 and placed one window of 5x4 ft in the said wall on the side of the land of the plaintiffs though the defendant had no right of easement on the land of the plaintiffs. It is further averred in the plaint that the defendant since having open vada land, has no right of light or air through any window or ventilation or any right of discharge of water on the land of the plaintiffs and has no right or authority to cause damage to the land of the plaintiffs. The defendant though requested not to do any illegal act of making construction of wall touching the land of the plaintiffs but since did not stop doing such illegal act, suit is filed. In the suit, the plaintiffs have prayed that since the defendant has no right or authority to place any window, door, ventilation, etc. in the wall on the western side of his vada land, the window of 5x4 ft placed in wall be ordered to be closed by mandatory injunction. Plaintiffs have also prayed to grant permanent injunction restraining the defendant from placing window, door, ventilation, etc. in the wall on the western side of his land touching the land of the plaintiffs and from discharging rainy water or any other water through gutter or any other mode on the land of the plaintiffs.

(3.) SUIT was resisted by the defendant by filing written statement at Exh.18 taking various contentions.