JAYANTILAL MAGANLAL SONI Vs. PRAMODRAY UMIYASHANKAR SHUKLA

JUDGEMENT

(1.) This Appeal under Section 100 CPC has been preferred by the defendant in Regular Civil Suit No.505/1979 against the judgment and order dated 13th October, 1986 passed by the learned District Judge, Kachchha in Regular Civil Appeal No.49/1982. The Appeal is admitted on the following substantial questions of law :-

(2.) The respondents-plaintiffs are the owners of a house situated at Bhuj. The defendant is the owner of the house no.1/1051 adjacent to the house of the plaintiffs. As the defendant placed the windows and a door abutting on the property of the plaintiffs, the plaintiffs instituted Civil Suit No.200/1974. The said suit was compromised on 3rd August, 1978 in Civil Appeal No.117/1975. Under the said compromise, the defendant agreed to remove the door and to restore the wall. He also agreed to remove the two windows. The plaintiffs, however, agreed that the defendant may place one window admeasuring 3 feet x 4 feet at the height of six feet in the said wall. Since the said compromise, the defendant tried to open a hole in the wall in question. The plaintiffs, therefore, instituted Regular Civil Suit No.505/1979 in the Court of Civil Judge (S.D.), Bhuj for mandatory injunction directing the defendant to close the hole and for permanent injunction. The said suit was contested by the defendant by written statement Exh.29. The learned Civil Judge, by judgment and decree dated 19th January, 1982, allowed the suit and issued mandatory injunction to restore the wall and permanent injunction restraining the defendant from placing window or any aperture in the wall in question. Feeling aggrieved, the defendant preferred Regular Civil Appeal No.49/1982 in the District Court, Kachchha. The Appeal has been dismissed by the learned District Judge by impugned judgment and order dated 13th October, 1986. Therefore, the present Second Appeal.

(3.) Mr.Hathi has submitted that indisputably the wall belongs to the defendant and the defendant has right to place doors and windows and to receive air and light from such doors and windows.