SANTUL Vs. BAIJNATH

JUDGEMENT

(1.) THIS is a defendant's second appeal against the decree and judgment dated 29th August, 1973 of the Additional Civil Judge, Mirzapur dismissing the appeal with certain modifications in the decree passed by the trial Court. The suit giving rise to this appeal was filed by the plaintiff-respondent for permanent injunction restraining the defendants from interfering with the possession of the plaintiff over the land in dispute which has been shown by letters Ka, Kha, Ga, Cha and Cha, Chha, Ja and Jha in the plaint map and for issue of mandatory injunction directing the defendants to close the door 'ta' lying in the western wall of the house of defendants. The suit was filed on the allegations that the house and Baithaka of the plaintiff have been in existence since long and the same have been shown by letters Ka, Kha, Ga, Gha and Cha, Chha, Ja and Jha and the land shown by letters Ka, Kha, Aa, Va and Sa, Da, Ya, Cha is appurtenant to the said house of the plaintiff. The plaintiff has been in possession of the same at the time of the abolition of Zamindari. Therefore, the land has been settled with the plaintiff under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act ). The house of the defendants has been shown by letters Ya, T, Tha, Da and Dha. It has been further alleged that plaintiff and his ances tors have also been in adverse possession of the said property. The defendants have a house to east of the land and they have got no concern with the laud in dispute. The defendants started tethering their cattle and they took forci ble possession over the land. Proceedings under Section 145 Cr. P. C. were, started which were decided in favour of the plaintiff and the attached property was released in favour of the plaintiff on 11-4-1967. The defendant have also opened a door in the western wall after the property in suit was released in favour of the plaintiff. A request was made to close the door which was refused and the defendants are intending to take forcible possession over the disputed land as well. The suit was contested by the defendant appellants on the ground that the plaintiff or their ancestors have never been in possession of the land marked by letters Sa, Da, Ya, Cha and Ka, Kha, Ba and Aa and this land was not appurtenant or sehan darwaza of the plaintiff. It has been further stated that the plaintiff or his ancestors had never been in adverse possession of the land in dispute. The defendants are the owners of the land in dispute and doors of the defendant's house have been towards west since long. The land in dispute is being used as sehan since long. Proceedings under Section 145 Cr. P. C. were collusive. It was further alleged that the suit was barred by time. The suit was decreed by the trial Court. The defendants were directed to close the door existing in the western wall of the house of the defendants denoted by letters "m. F. E. O. " shown in the map (paper No. 41/4 C) and as shown by letter 'ta' in the sketch map enclosed with the plaint. The defen dants were further permanently restrained from interfering with the possession of the plaintiff of the land in dispute denoted by Sa Da Ya Cha "in the plaint map. The defendants preferred an appeal against the decree and judgment of the trial Court which was dismissed by the lower appellate Court with certain modifications. The defendants have filed this appeal against the decrees of the Courts show in this Court. It has been contended by the learned counsel for the appellants that no decres has been passed in respect of the door which is fixed in the defendant's wall. According to him it opens on the rasta. The learned counsel for the respondent contended that the door which has been recently opened by the defendants opens on the land of the plaintiff and not on the rasta. Therefore, the Courts below were correct in directing the defendants to closs the door. The learned counsel for the appellants has relied on Kashi Nath and others v. Ram Jiwan and others (A. I. R. 1933 All. 847), wherein it has been held that every owner has got the right to open apertures in his wall and unless by doing so he inva des the privacy or any other pre-existing and well- established right vested in his neighbour, the latter cannot force him to close the apertures. The neighbo ur's remedy is to build on his land or otherwise obstruct the apertures. In this ease both the parties had agreed that the plaintiff may be paid compensation and on payment of compensation the defendants were allowed to keep the door and window opened and to pass through door over the sight in question. THIS case was decided on the basis of the agreement of the parties But in the present case there is no such agreement between the parties. Therefore, it is not applicable to the facts of the present case. The learned counsel for the appellants next relied on Abdul Sattar v. Shadi Lal and others (A. I. R. 1973 All. 530), and unreported decision in Mahadeo and others v. Jokhoo (Second Appeal No. 1917 of 1969), decided on 16-7-1979. In both these cases it has been held that every person has a right to open as many windows or doors in his wall as he likes and he may even demolish the entire wall, his neighbour cannot compel him to make the wall or close the windows. The neighbour may protect his privacy by making constructions on his own land. In the present case, the dispute was about the ownership and possession of the land shown by letters A, C, D, G in map paper No. 41/1 (41-C) as shown by letters "a Sa Da Ya Cha" in the plaint sketch map), The Courts below have concurrently held the plaintiff respondent to be the owner in possession of the land in dispute. Therefore, the defendants have rightly bean restrained from interfering with the possession of the plaintiff's land in dispute. How ever, as regards the opening of the door by the defendants in their own wall is concerned, the defendants are the owners of their wall and they have got every right to open a door, window or even demolish the entire wall. The plaintiff has no right to restrain the defendants from opening the door, window or demolishing the wall. Certainly by the act of the defendants the right of privacy or enjoyment of any other kind cannot be disturbed by the defendants and the land in dispute cannot be disturbed. The plaintiff has got every right to construct his own wall on his land so that the door in dispute may be completely blocked and may become completely useless for the defendants. But in any case, the plaintiff has got no right to ask the Court for the closure of the door of the defendants. In view of what has been discussed above, I find no force in this appeal which is liable to be dismissed. In the result, the appeal fails and is accordingly dismissed with the obervations made above. The parties shall, however, bear their own costs. .