BHANWARLAL Vs. KAMLA

JUDGEMENT

(1.) THIS is a plaintiff's second appeal arising out of a suit for permanent injunction restraining the defendants from raising construction in the lane in question which has been marked as 'bg' in the plan Ex. 4, and also for mandatory injunction for demolition of a wall raised by the deceased defendant No. 1 Gokul Narain Sharma in the lane in question on account of which the plaintiff's windows, 'jalies' and spouts opening in the lane in question have been closed down.

(2.) THE houses of the plaintiff Bhanwarlal and the defendant No. 1 Shri Gokul narain Sharma, who died during the pendency of this appeal and is now represented by respondents No. 1/1 to 1/13, at one time belonged to Thakur Kirat singh of Bagru (defendant No. 2), who too died during the pendency of the suit and is now represented by his widow Mst. Mohan Kanwar respondent No. 2 in this appeal. The deceased Gokul Narain Sharma was an Advocate and on account of the professional services rendered by him to Thakur Kirat Singh, the latter gifted his house situated at Bagruwalan-ka-Rasta, in Jaipur towards the north of the lane and contiguous to it by a registered gift deed dated 19-8-1949 which has been placed on the record and marked Ex. A-l. Subsequently Thakur Kirat Singh gifted the open land lying on the south of the lane to plaintiff Bhanwarlal on account of the services rendered by the latter as a physician (Vaidya) and executed a gift deed in his favour in respect of this land on 8-7-1950 (Ex. 12) in which it was specifically mentioned that the land previously used as stable for elephants called 'hathi-ka-Than' belonging to Thakur Kirat Singh, situated contiguous to the built house previously gifted to Shri Gokul Narain had been gifted to Bhanwarlal, after excluding a lane measuring 3' 6" north to south and 69' east to west so that the windows, 'jalies' etc. , in the house of Shri Gokul Narain may not be obstructed. The plaintiff Bhaa-warlal started construction on the land gifted to him some time in the year 1951 A. D. and constructed a number of windows, 'jalies' etc. overlooking the lane 'bc" in dispute. The plaintiff's case is that he had been enjoying light and air through these apertures opening in the lane and also been using the lane as a passage as well as for discharge of water through the spouts. According to the plaintiff the defendant- Shri Gokul Narain had applied for permission to the Muncipality for raising construction in the lane and therefore he filed the present suit in the Court of Mun-siff West, Jaipur for issue of permanent injunction. He was, however, not able to obtain a temporary injunction against the said defendant and consequently the defendant raised a wall in the fane contiguous to the plaintiff's house 24' high and 80' long and thereby closed down all the openings in the plaintiff's house over the lane. The plaintiff, therefore, filed an amended plaint on 12-8-1955 by adding a relief or mandatory injunction for demolition of the wall constructed by Shri Gokul Narain after the filing of the suit. The plaintiff's allegation was that the lane in question had been left out by Thakur kirat Singh for the benefit of both the parties, and that the plaintiff had acquired an easement in respect of the apertures and spouts opening in the lane.

(3.) THE suit was resisted both by Gokul Narain as well as the legal representatives of Thakur Kirat Singh who had died in the meanwhile. Though they have filed separate written statements but their defence is the same. The case put up by shri Gokul Narain and supported by Smt. Mohan Kanwar widow of Thakur Kirat singh is that the lane in question had been left out by Thakur Kirat Singh at the time of making gift in favour of the plaintiff for the beneficial enjoyment of Gokul narain and not for the benefit of the plaintiff, and further that the lane had been sold by Thakur Kirat Singh for Rs. 11 by a sale deed dated 11-7-1950 only after two days of the gift in favour of the plaintiff Bhanwarlal. In short the plaintiff's right to enjoy light and air through the apertures existing in his house and opening on the land in question was denied, and it was pleaded that the plaintiff had neither acquired any easement in respect of them, nor he had any right in respect of the lane which was the exclusive property of the defendant Shri Gokul Narain.