ASHMA BAI Vs. YAQUB ALI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated May 31, 1974 passed by the learned Additional Civil Judge, Udaipur, whereby, Civil Appeal No. 27 of 1971 was allowed and the judgment and decree of the learned Munsif, Udaipur dated August 5, 1971 dismissing the plaintiff's suit were reversed and the plaintiff's suit for permanent injunction was decreed.

(2.) THE plaintiffs -respondents instituted the suit against the defendants Sadiq Ali and Tayab Ali sons of Ismail with the allegations that the parties belong to one family. They have got house No. 13/56 in the City of Udaipur. The parties are in possession of their respective shares in that house. The plaintiffs alleged that the land measuring 38 x 12 -1/2 feet situated towards the west of the house belongs to the plaintiffs, which is shown in plan (Ex. 1) as ABCD. The plaintiffs alleged that they have got a right to go to their house through this open land. There is a joint chowk towards the east of the main entrance of the house and there is stair -case in the north. There are drains for the discharge of water. It was also alleged that windows and jalies of plaintiffs No. 1 and 3 abut on the open land ABCD. These windows and jalies are being used for more than 60 years. It. was alleged that the plaintiffs want to raise construction on this open land, for which, necessary permission has been obtained from the Muncipal Council, Udaipur. The plaintiffs prayed for permanent injunction restraining the defendants from raising any construction over the open land, which may affect the plaintiffs rights claimed in paras 3, 4, 6, 7, 8, 9 and 10 of the plan.

(3.) ON the pleading of the parties, two issues were framed. Evidence of the parties was recorded. Thereafter, the learned Munsif dismissed the suit after hearing the parties. He decided both the issues against the plaintiffs. In issue No. 1 he found that the plaintiffs have failed to prove that the open land measuring 38 x 12 -1/2 feet belongs to the plaintiffs. While dealing with the easementary rights claimed by the plaintiffs In Issue No. 2, the Munsif found that the plaintiffs have no such rights as claimed, consequently, the plaintiffs suit was dismissed.