PARMAR GOGJI KANA Vs. PARMAR GANESH MOTI

JUDGEMENT

(1.) The suit from which this second appeal arises was instituted by the plaintiff-respondent in the Court of the Civil Judge (I. D.) at Limbdi against the defendant-appellant for a permanent injunction restraining the defendant from tethering cattle in his Fali and keeping utensils and agricultural implements and also for a permanent injunction restraining him from causing obstruction to him in tethering cattle or using the Fali in any way he liked and for other incidental reliefs in the suit inter alia alleging that the suit Fali belongs to him and that the defendant has no right to tether cattle or keep any such implements so as to obstruct him in enjoyment thereof.

(2.) The defendant-appellant resisted the suit inter alia contending that the Fali in front of his house belongs to him and not to the plaintiff as alleged; that he had allowed the plaintiff to construct a Gaman as he was his neighbour and he had to remove the same when called upon to do so; that he has a right to use and enjoy the Fali in front of his house in any manner he liked and that therefore the suit was liable to be dismissed.

(3.) The trial Court raised the issues and in its opinion the Fali in front of the houses of the parties extending to the wall of Thakor Mandir on the east and between the two Kodvas of the plaintiff belongs to the plaintiff and that the defendant has no right to tether cattle or put any utensils and implements in the Fali in front of his house. In the result therefore he directed the defendant to remove the wooden hoop from near the southern Kodva and also all other utensils and implements if any from the Gaman. The defendant is further restrained from doing any act that would interfere with the plaintiffs reasonable enjoyment of the disputed Fali. Feeling dissatisfied with that order passed on 30th November 1957 by Mr. J. S. Bhatt Civil Judge (J. D.) Limbdi the defendant preferred Civil Appeal No. 40 of 1958 in the Court of the District Judge Zalawad Division. The same issue regarding the ownership in respect of the disputed Fali was raised and he found that it belonged to the plaintiff. In the result the appeal was dismissed with costs. Aggrieved by that decision passed on 30th April 1959 by Mr. V. M. Solanki District Judge Zalawad Division Surendranagar the defendant has come in appeal.