SUWALAL Vs. MEGHRAJ

JUDGEMENT

(1.) THIS is a second appeal filed by Suwalal, against the decree and judgment of the learned Civil Judge, Sojat dated March 30, 1970 by which the judgment and the decree of the Munsif Jetaran dated November 8, 1968 were modified to the extent that the order for closure of the door and the perpetual injunction granted in favour of the plaintiff with regard to it were set aside.

(2.) THE relevant facts giving rise to this appeal may be briefly stated as follows Suwa Lal and Prithvi Raj, plaintiffs instituted a suit against Megh Raj, Inderchand and Prem Raj defendants for grant of mandatory and prohibitory injunction in the court of learned Munsif, Jetaran on March 9, 1966. The averment in the plaint were that the plaintiffs and their brothers own and possess three houses in a narrow lane situated in the Mohalla of Sharabji's at Village Nimbaj. In between the two houses of the plaintiffs there is the backside wall of the house of the defendants, which is shown in green colour in the site plan. In the front of the house of the plaintiffs, there existed a 'Packa Chabutra' shown in dots in the site plan for the last hundred years. The Chabutra was used by the plaintiffs for their sittings on the occasion of marriages and deaths in their family and the plaintiffs had acquired proprictory rights in the land on which the 'Chabutra' existed. In the alternative, it was pleaded in the plaint that the plaintiffs have a customary right of way over the Chabutara and the open land lying in front of their houses. It was further alleged in the plaint that the defendants purchased their house from Thakur Nimbaj, namely Ummed Singh and there was no gate and balcony over it in the backside well of the house of the defendants towards the Chabutari of the plaintiffs till November, 30 1965 on which, date, the defendants opened a new gate and constructed a new balcony on the back side wall of their house by demolishing the Chabutra of the plaintiffs and constructing a new Chabutra of their own on its place without any authority in spite of the fact that their application for permission to open the gate and to construct a balcony over it was rejected by the Gram Panchayat, Nimbaj on May 31, 1961.

(3.) THE defendants resisted the suit of the plaintiffs on various grounds which were enumerated in their written statement. Their plea was that no Chabutari of the plaintiffs ever existed on the land in dispute and that no new gate was opened by the defendants In the backside wall of their house, and no new balcony was constructed by them over the gate. According to the defendants, the gate and the' balcony in their backside wall were old ones and therefore, the plaintiffs were not entitled to grant of mandatory or perpetual injunction for closure of the door and removal of the balcony. Likewise, the defendants further pleaded that they did not demolish any Chabutari of the plaintiff and did not obstruct any customary right of way of the plaintiffs. It was further pleaded by the defendants that the land in question did not belong to the plaintiffs, nor at any time they had any customary right of user on way over it. Upon pleadings of the parties the (sic)searned Munsif framed as many as seven issues in the suit which read as follows: