CHATURBHUJ SANGJI Vs. MANSUKHRAM MOTILAL

JUDGEMENT

(1.) This is a second appeal by defendant No. 3 against the judgments of the two lower Courts in favour of the plaintiff. Para (a) of the judgment was a mandatory injunction with reference to the property D of defendants Nos. 1 and 2. They have not appealed, and I need not therefore for the moment consider their case. Para (b) was a mandatory injunction against defendant No. 3 to block up a door on the western aide of his house E, and also in effect to alter the roof of his house by making it all slope towards the east instead of partly to the west and partly to the east as theretofore. Para (c) was an injunction to restrain all the defendants from entering the plaintiff's chowk or from taking any cattle there. What the plaintiff claims to be his chowk is shown in the suit plan. It abuts on the property E of defendant No. 3 and on the adjoining property D of defendants Nos. 1 and 2.

(2.) In the Courts below the real point of conflict was this, The plaintiff claimed property A, B and C including the chowk under a sale deed, Ex.45, of June 30, 1916; and defendant No. 3 claimed property D and rights over the chowk under a sale deed, Ex. 48 of July 12, 1919. The vendor in both cases was one Bai Manek, a Hindu widow- as guardian of her minor son. But as regards the later deed, Ex. 48, this was a sale by order of the Court, and accordingly the Nazir as the Mukhtyar appointed by the District Court on behalf of Bai Manek, (the guardian and mother of the minor), was the conveying party. In this second sale it was the Nazir who under the Court's orders had put the property up for sale.

(3.) Now it is quite clear that this second sale deed, Ex. 48, purported to grant to defendant No. 3 this house (which I have called property E) with also a right of passage over the chowk and a right to use the water supplied from a pipe in the chowk; and further that the latrine which is in the chowk was expressed to form part of the land conveyed to defendant No. 3.