MAHADEV PARSHAD Vs. DHUMI

JUDGEMENT

(1.) A look at plan Exhibit P1. would show that the two green portions are possessed by the plaintiffs and the defendants portion is shown on the eastern side. On the Southern side of the defendants' house is the Sehan which is in dispute.

(2.) The plaintiffs came to Court for claiming a prohibitory and mandatory injunction on the plea that the Sehan was jointly used by the parties since times immemorial and the water from their house used to flow towards the north through the passage and common compound (Sehan) and they also enjoyed light and air and the defendants has now constructed wall (AB) as a result of which their access to the Sehan was blocked. They also claimed certain other reliefs. The suit was opposed by the defendants and they denied that the Sehan and the alleged passage was common of the parties. The trial Court by judgment and decree dated 25.3.1972 decreed the plaintiffs' suit for prohibitory injunction, restraining the defendants from obstructing ingress and egress to their houses and also from the joint user of the Chowk (Sehan) and also from obstructing the flow of water from the house of the plaintiffs. A decree for mandatory injunction was granted to remove the wall 'AB' constructed in front of the plaintiff's house within a period of one month. On defendants' appeal, the lower Appellate Court by judgment and decree dated 6th February, 1978 allowed the appeal after recording a finding that the property in dispute vests in the Shamilat Deh and without impleading the proprietors of the Shamilat Deh, the suit could not proceed and was not maintainable. This is second appeal by the plaintiffs.

(3.) Shri Gopi Chand, Advocate, appearing for the plaintiffs, has urged the Naksha Kashra Abadi Ex. P11, Aksh Shajra P10, Shajra Kashra Abadi P4 to show that the property No. 5 was Shamilat Deh Rasta and property No. 5 is Sehan in dispute and, therefore, the plaintiffs were entitled to use Sehan as a Rasta and the defendants could not set up wall 'AB' to block their passage to the Sehan.