NAFISUN NISA Vs. MOHD ISHAQUE

JUDGEMENT

(1.) THIS is a defendant's second appeal against whom a decree for injunction has been passed by the lower appellate court though originally the suit of the plaintiff was dismissed by the trial court.

(2.) THE brief facts of the case so far as relevant for the decision of this appeal were that one Azizuddin and his wife Smt. Safia Khatoon were owners of a house situate within a compound known as Waheed Manzil. Azizuddin died leaving his widow Smt. Safia Khatoon, a major son Gawasul Aziz, two, minor sons Raisul Aziz and Nafisul Aziz and a minor daughter Noorafsa Begum as his heirs who inherited the share of Azizuddin in this house and the rest of his property situate in the compound of Waheed Manzil. On 13-9-1950 Gawasul Aziz, and Smt. Safia Khatoon in her own right as well as acting as guardian of her two minor sons and one minor daughter executed a sale deed in respect of that house in favour of Mohd. Ishaq plaintiff-respondent. In the sale deed it was stipulated that the vendee Mohd. Ishaq shall have a passage at least 6 ft. wide towards the east for ingress into and egress from the house so sold to him. By the time this sale deed was executed no guardian of the minor had been appointed under the Guardians and Wards Act. Subsequently, Gawasul Aziz was appointed by the District Judge as guardian of the person and property of his minor brothers and sister. Thereafter, Gawasul Aziz after obtaining permission from the District Judge executed a sale deed on 4-4-1952 in favour of Smt. Nafisun Nisa, defendant-appellant before us. This sale deed was executed by Smt. Safia Khatoon in her own right and by Gawasul Aziz in his own right as well as on behalf of minors whose guardian he had been appointed by the District Judge. Under this sale deed the vendors transferred an open piece of land situate in Waheed Manzil to Smt. Nafisun Nisa. Simultaneously, they imposed an easement by way of right of passage on a part of their remaining property of which the executants were full owners. This easement was imposed by stipulating that towards the south of the land sold an open land 8 ft. wide shall be left for passage to the land sold under that sale deed as well as to other houses situate in the compound of Waheed Manzil including the house of Mohd. Ishaq (plaintiff-respondent) and also for house known as Waheed Manzil aforesaid belonging to and owned by the executants. It appears that Smt. Nafisun Nisa while constructing a house on the land purchased by her under this sale deed dated 4-4-1952 projected a balcony over this passage land and also paved it with Pucca bricks. The plaintiff Mohd. Ishaq apprehending that in doing so the passage to his house would become narrow filed a suit for injunction against the defendant.

(3.) THE trial court held that though the sale deed dated 13-9-50 was void with regard to the share of the minors, it was valid in respect of the share of Smt. Safia Khatoon and Gawasul Aziz and under that sale deed the plaintiff was entitled to a passage 6 ft. wide which was still available. The plaintiff could not avail of the second sale deed executed in favour of the defendant and enforce the covenant contained in it that 8 ft. wide passage will be left. On these findings the suit was dismissed.