BALKISHAN Vs. HARLAL

JUDGEMENT

(1.) THE defendants, who have been unsuccessful in both the courts below, have filed this second appeal against the judgment and decree of District Judge of Balotra dated March 31, 1962.

(2.) THE facts are quite simple. THE parties are neighbours and it is not disputed that site-plan Ex. 3 correctly shows the location of their houses. It is apparent from the plan, and is not in dispute, that there is no door or window in the southern wall of the house of the defendants opening on land marked D. THEre is however a dispute regarding the ownership of that piece of land for, while the plaintiffs claim that it belongs to them and has been in their possession for a long period, the defendants claim that it is a part of a public way and is open to access and has been used by them for more than 35 years. It is however not in dispute that the houses of the plaintiffs open on this land and they have their "chabutaris" also towards it. THE plaintiffs learnt that the defendants wanted to open a door in the southern wall of their house, towards the land marked D in the site-plan, and had applied for the grant of the necessary permission to the Municipal Board. THE plaintiffs therefore raised the present suit for the issue of a perpetual injunction restraining the defendants from opening any such door on the ground that this would create new rights of passage over land marked D to which the defendants were not entitled. THE plaintiff prayed further, that the defendants may be restrained from interfering with their right in the land.