BASAI Vs. HASAN RAZA KHAN

JUDGEMENT

(1.) This is a second appeal by Basai against the decision of the Civil Judge of Basti decreeing 'the suit of plaintiff-respondents Hasan Raza Khan and others for an injunction requiring him to close a window in his kitchen wall and demolishing his cattle trough and pegs (haudi and khunta) and also close his nabdan. The plaintiffs and the respondent are resident of the same village and neighbours, the defendant's house overlooking the plaintiffs' sehandarwaza (sort of open courtyard). The plaintiffs alleged that a pathway ran through the defendant's sehan upto the plaintiffs' sehandarwaza which enabled them to take bullock-carts to their house; but recently the defendants had made constructions on his sehan encroaching upon this pathway and thereby reducing its width with the result that no bullock-cart could pass. The plaintiffs contended that they had acquired a prescriptive right of passing bullock-carts over this pathway which has been infringed by the raising of the new construction. The plaintiffs also alleged that the defendant had recently shifted his old nabdan to a new place along his own wall which was near the house of the plaintiffs; and the plaintiffs apprehended that they would be disturbed by the foul smell of the dirty water discharged from the nabdan. They further complained that the defendant recently had opened a window in his kitchen wall overlooking the plaintiffs' sehandarwaza and this disturbed the plaintiffs' privacy for the defendant could peep through this window and the plaintiffs' women folk were consequently unable to sit in the sehandarwaza. The plaintiffs asked for an injunction requiring the defendant to demolish his constructions which had narrowed the width of the pathway, remove the nabdan to its old place, and close the window in his kitchen wall. They also asked for a fourth relief which need not be considered in this appeal as it was rejected by both the Courts below and no argument was addressed to me against their concurrent decisions.

(2.) The trial Court held that the defendant had built his constructions on old foundations, that the plaintiffs' prescriptive right of passing bullock over the pathway had not been established, and that the nabdan and the window caused no inconvenience to the plaintiffs. Accordingly it dismissed the suit. In appeal the learned Civil Judge reversed all these three findings. He held that the constructions in dispute were not built on old foundations but were new, that the plaintiffs established their prescriptive right over the pathway, that the window in the kitchen wall disturbed the plaintiffs* right of privacy and the shifting of the nabdan was likely to cause nuisance to the plaintiffs. He allowed the plaintiffs' appeal and ordered the defendant to demolish the construction and thus restored the plaintiffs' prescriptive right, to close the window and remove the nabdan. The defendant has now come to this Court in second appeal.

(3.) Mr. Prem Mohan Lal Verma learned counsel for the appellant argued that the decision of the lower appellate Court was erroneous on all the three points on which he reversed the findings of the trial Court. He had erroneously held that the plaintiffs had established a prescriptive right of passing bullocks over the pathway, that the window in the wall disturbed the plaintiffs' privacy and that the nabdan had resulted in a nuisance. I shall consider the findings of the learned Judge on each of these three poults.