VAGHELA VAKHATSINH AGARSINH Vs. PARMAR LALJI KHODIDAS

JUDGEMENT

(1.) THE facts leading to this appeal briefly stated are as under: The present respondent filed a suit in the court of the learned Civil Judge at Limbdi alleging that they were the owners of a house consisting of two rooms facing east having continuous back wall on the west in Ambali Sheri locality at Limbdi. On the west of this wall, was a naveli or narrow lane 28' -8" long and 3' -6" broad. On the other side of the Naveli was the back wall of the defendant's house. According to the plaintiffs they had one window measuring 2' x 2' in the back wall of their house through which a person could go in the naveli and they had two ventilators in each of the two rooms. According to them the two ventilators in the southern room had been placed two to three years ago whereas the two ventilators in the northern room and the window referred to above existed for a number of years. The plaintiffs claimed a right to get light and air through these apertures and they claimed a right of way to enter the naveli for the purpose of repairing their back wall and placing tiles on the roof of their house. However, on 12th April, 1965 the present appellant constructed a pakka wall of bricks just touching the back wall of the plaintiffs thus entirely closing all the apertures of the plaintiffs and preventing the plaintiffs from entering the naveli. It was alleged that the defendant had placed a lock on the door on the south of the naveli as a result of which the plaintiffs could not go there. The plaintiffs prayed for a mandatory injunction directing the defendant to remove the southern wall and to keep the door on the south of the naveli open permanently or in the alternative to give a key of the lock to the plaintiffs. The defendant by his written statement Exh. 10 denied that there was a window or there were any ventilators or apertures in the back wall of the plaintiffs. According to him all these apertures had been recently put by the plaintiffs without having a right to do so. He denied that the plaintiffs had a right to go in the naveli for the purpose of repairing their back wall or for any other purpose. Accordingly, the defendant contended that he had every right to put a pakka brick wall against the plaintiff's back wall and to enclose the naveli. The learned trial Judge decreed the suit in part and directed the defendant to keep open an area of 4' -5" in his wall opposite the window in the plaintiffs' back wall. Against the said judgment and decree an appeal was preferred in the District Court, Surendranagar wherein the following points were raised for determination:

(2.) MR . Mangaldas M. Shah, learned Advocate for the respondents on the other hand urged that if the case falls under the first part of Explanation I, appended to Section 33 namely if the doing of any act likely to injure the plaintiff by affecting the evidence of the easement, substantial damage within the meaning of Section 33 could be said to have been caused to the plaintiff. He, therefore, urged that there was no reason to interfere with the decree of the lower court.

(3.) IN the result, I pass the following order: