BALMUKUND & ORS Vs. DEVKANYA & ANR

JUDGEMENT

(1.) The appellants-defendants, Balmukund and others have filed this second appeal under Section 100 of Code of Civil Procedure, 1908, against the judgment and decree dated 04.03.2010 passed by learned Additional District Judge No.1, Udaipur in Appeal No.159/1997 (200/1996)- Balmukund & Ors. Vs. Smt. Devkanya & Anr., whereby the first appeal filed by the appellants-defendants has been dismissed while affirming the judgment and decree dated 26.10.1996 passed by learned Civil Judge (Jr. Division), City (North), Udaipur in Civil Original Case No.330/1984- Smt. Devkanya & Anr. Vs. LR's of Harivallabh and Balmukund, decreeing the plaintiffs' suit for permanent injunction.

(2.) Briefly stated, the facts of the case are that the plaintiffsrespondents, Smt. Devkanya and legal representatives of Madan Lal filed a suit on 27.11.1984 before the learned trial court for permanent injunction alleging therein that both the parties are having their residential houses in Ramdwara Chowk, Udaipur. The plaintiffs averred that they have purchased the suit premises from Kanhaiya Lal, over which they plaintiffs were having 'Haksafa' (Pre-emption) right. Since, the defendants were initially not willing to agree to the 'Haksafa' (Pre-emption) right of the plaintiff, however, upon a mutual settlement arrived at between the parties in the form of some agreement dated 16.02.1962, the defendants agreed to the 'Haksafa' (Pre-emption) for the plaintiffs-appellants. Thereafter in the year 1983, the defendants opened two doors and windows in the "Chowk" and in the southern side the defendants constructed "Chabutari" measuring 20' x 2' 1/2''. The defendants were called upon to remove/close these doors and windows, however, they refused to remove the same. The plaintiffs-appellants thus filed suit for closing the doors and windows opened by the defendants in their "Chowk" and restrained them from using the the same.

(3.) The learned trial court after hearing the parties vide the judgment and decree dated 26.10.1996 decreed the plaintiffs' suit restraining the defendants from using the "Chowk", purchased by the plaintiffs, however, allowed both the parties to construct their walls at their own expenses in the middle.