HAJI ABDUL SHAKOOR KHAN Vs. SMT. GHISSO BIBI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for permanent injunction restraining the defendants from interfering with the plaintiff's right of repairing the southern wall of his house from within the courtyard of the defendants. The houses of the plaintiff and the two defendants are adjacent to each other and are situate on the University Road, Allahabad. The plaintiff's case was that he was the owner of house No. 7 while defendant No. 1 was the owner of house No. 6 on the University Road. It may be stated that defendant No. 2, Maqsood Ahmad, is the son of defendant No. 1 who is also known as Zainab Bibi. The plaintiff's case was that he purchased his house in 1928 and since then he had been repairing, white -washing and plastering the southern wall by constructing a scaffolding in the courtyard of the defendants' house in the month of October each year. According to the plaintiff this right became a legal right in view of the fact that he had been exercising it continuously for more than twenty years and as of right. The plaintiff's case further was that in October 1962 when the plaintiff wanted to enter the courtyard of the defendants in order to erect a scaffolding for the purpose of repairing and white -washing the southern wall of his house he was prevented from doing so by the defendants and hence the suit.

(2.) The two defendants filed separate written statements but the plea of the two defendants was the same. The defendants admitted that their house and the plaintiff's house were adjacent to each other and the southern wall belonged to the plaintiff. In the written statement filed by Maqsood Ahmad defendant No. 2 it was said that he was unnecessarily made a party in the suit. The plea of both the defendants was that the plaintiff had no right of easement to enter the defendants' courtyard for the purpose of white washing, repairing and plastering the southern wall of his house and further that the plaintiff did not carry out such white -washing, repairing or plastering within more than two years next before the filing of the suit. According to the defendants, therefore, the plaintiff's suit was barred by time.

(3.) On the pleadings of the parties the trial court framed the following four issues: