HANSRAJ C PATEL DR Vs. DARJI NARSI DAMJI

JUDGEMENT

(1.) This is a second appeal by the original defendant of the Civil Suit No. 125 of 1971 filed by the respondents-plaintiffs in the court of the Civil Judge (J.D.) Gondal who was pleased to decree the plaintiffs suit. In the Civil Appeal No. 60 of 1974 filed by the present appellant_ original defendant in the District Court at Rajkot the learned Assistant Judge at Gondal was pleased to substantially confirm the decree but modify it a little in respect of some detail. Hence the original defendant has preferred the present second appeal.

(2.) The plaintiffs had filed the aforesaid suit for a mandatory in junction directing the defendant-appellant to remove the construction made by him touching the southern wall of the plaintiffs eastern house to the extent of 10 from east to west because the said construction interfered with the plaintiffs right of dropping eaves on the defendants property. The learned trial Judge had also issued a perpetual injunction restraining the defendant from obstructing the discharge of rain water from the eaves of the plaintiffs eastern house towards the south in the property of the defendant to the extent of 10 east to west. The learned appellate Judge directed the removal of that much construction which obstructed projection of eaves of the roof of the plaintiffs in the length of 4 covering the length of southern wall within the land of the defendant with a view to enable the plaintiffs to project their eaves and to discharge water of their eaves on the property of the defendant.

(3.) The position of the houses of the parties is no longer in controversy. The plaintiffs had purchased that property in the year 1944 as per the sale deed Ex. 45. The vendors were the trustees of the Swaminarayan Temple at Gondal who had retained with them the defendants present property which was purchased by the defendant on 28-6-67 as per the sale-deed Ex. 62. Ever since the purchase the eaves of the plaintiffs were protruding beyond their wall and the rain water used to fall on the defendants land. The plaintiffs alleged that they had acquired this easement right pursuant to the deed and also pursuant to the continuous enjoyment of that right uninterruptedly ever since 26-10-44 by prescription also. They stated that the defendant had put up a structure after purchasing the property and while doing so he had attempted to remove the eaves of the plaintiffs in the disputed land of 10. He was served with a telegraphic notice and also a registered notice but he ignored the same and high-handedly removed the eaves which were projecting on his land. He constructed a cement concrete beam just in front of the wall and proceeded ahead with the construction of a terrace above the said beam. The plaintiffs therefore instituted the suit to get a declaration of their right and for a mandatory injunction to get removed the obstruction caused by the defendant.