KANTILAL MAGANLAL SHAH Vs. RATILAL KESHAVLAL KHATWALA

JUDGEMENT

(1.) This first appeal at the instance of original plaintiff No. 1 arises out of a suit filed in the City Civil Court Ahmedabad being Civil Suit No. 1009 of 1969 praying for the reliefs of permanent injunction restraining the defendants from putting up the construction across the common chowk belonging to the parties so as to obstruct their light and air which they are entitled to for the comfortable living and enjoyment of their houses and for a mandatory injunction enjoining the defendants to remove the water pipe line which they have laid in chowk so as to cause damage to the property of the plaintiffs. They have also claimed damages in sum of Rs. 9900.00 as their properties have been damaged considerably as a result of the removal of the lateral support by the defendants who have rebuilt their houses from the foundations.

(2.) The learned City Civil Judge has dismissed the suit of plaintiffs as in his opinion the plaintiffs have not been able to prove that they have acquired by prescription a right of easement in respect of the light and air through the open chowk with respect to their properties. The learned City Civil Judge found against the plaintiffs that their right of way over the open chowk was in any way prejudicially affected by the proposed constructions by the defendants. He was also not impressed by the claim of the plaintiffs that they had suffered damages on account of the removal of the lateral support of the defendants while reconstructing their houses from the foundations. He therefore by his judgment and order of December 20 1973 dismissed the suit.

(3.) In order to appreciate the grievance of the original plaintiff No. 1 who is the appellant before me I may briefly refer to the situation of the respective properties of the parties hereto. In the city of Ahmedabad on Astodia road in Jamalpur Ward No. 2 there is a Khadaki in the Street known as Vinchhini-Pole in which the houses of the respective parties are situated. The said Khadaki opens in the south on Astodia Road. The houses of original plaintiffs Nos. 1 and 2 are situated on the north blind end of the said Khadaki in the opposite direction of west and east respectively. On the south of the said two houses two houses of the original defendant are situated opposite to each other in the east and west. If further appears that there are projecting OTAS in front of the two houses of the aforesaid plaintiffs Nos. 1 and 2 as well in front of the house situated on the western side of the defendant. There is an open chowk running from north to south in between these four houses. At the southern end of the chowk there is a Khadaki over which there is a connecting passage joining the two houses of the defendants in which they have provided bath-room and lavatory. The width of the chowk is varying at different points and it varies from 49 to 66. It appears that the defendants started re-building their houses from the foundations in course of which the foundations of the plaintiffs houses were exposed since the lateral support provided by the defendants houses was removed. The houses of the plaintiffs therefore tilted in the southern direction. The defendants wanted to connect their two houses by constructing a passage on the first floor in the chowk. The plaintiffs therefore apprehended that their comfortable living and enjoyment in their houses would be materially effected by the proposed construction which would obstruct the light and air accustomed to enter their houses. The plaintiffs therefore filed the present suit claiming the reliefs stated above.