DOSAN NOORMOHMED HASAN v. VAJIRBHAI ALIMAD AMI — 1978 DIGILAW 71 (GUJ)

D. G. KARIA, J. ( 1 ) THE plaintiffs who are brothers own and occupy their residential houses including the Anganwadi an open land bearing Gram Panchayat Nos. 960 937 936 961 and 962 situated in the locality known as Kui-vas in village Kanodar. Plaintiff No. 1 has been residing in the house bearing No. 960 which was purchased jointly in the names of all the plaintiffs and the remaining houses are owned and occupied by the Plaintiff No. 2 which abut on Fali or the chowk of their joint occupation and there exists a constructed portion used for urinal for the members of the plaintiffs family and there are pegs for tethering cattle in the said Fali. House No. 957 known as Vagodiyano-Mach of the defendant is situated to the north of the said Fali. The entrance of the house of the defendant abuts on the west. The contendent tried to put apertures doors or windows in the southern wall of his house. The plaintiffs therefore filed a Regular Suit No. 376 of 1972 in the Court of the Civil Judge (S. D.) Banaskantha at Palanpur against the defendant for a permanent injunction to the effect that the defendant or his family members servants or agents should not open any apertures doors windows or ventilations on the southern wall of his house bearing Gram Panchayat No. 957. The plaintiffs further averred that the plaintiffs are Muslims and as such doors windows if constructed or made in the southern wall of the defendants house abutting on the plaintiffs land it would offend their right of privacy and enjoyment of that property. The plaintiffs therefore filed the suit claiming the aforesaid relief. ( 2 ) THE defendant by his written statement Exh. 14 denied the claim of the plaintiffs contending inter alia that the plaintiffs has no right to prevent the defendant from opening any doors or windows on the southern wall of his house abutting on the street land. The defendant contended that the plaintiffs had no independent Maholla of their own in the Kui-vas and the land in the Kui-vas is part of the public street and as such the plaintiffs cannot claim the relief as claimed by them. The defendant also denied any right of privacy of the plaintiffs or their family members. The defendant contended that the plaintiffs had no independent Maholla of their own in the Kui-vas and the land in the Kui-vas is part of the public street and as such the plaintiffs cannot claim the relief as claimed by them. The defendant also denied any right of privacy of the plaintiffs or their family members. ( 3 ) THE learned Trial Judge after framing necessary issues that arose out of the pleadings and recording the evidence of the parties and after hearing the learned Advocates of the parties held that the plaintiffs had failed to prove that the southern wall of the defendants house No. 957 was of their joint ownership and that the open land to the south of it was of their exclusive ownership possession and enjoyment and as such he dismissed the plaintiffs suit. The plaintiffs being aggrieved by the judgment and decree of the Trial court preferred Regular Civil Appeal No. 34 of 1978 in the District Court Banaskantha at Palanpur. The learned District Judge Palanpur by his judgment and decree dated 30/11/1978 held that the plaintiffs had proved that the land to the south of the house of the defendants was in occupation of the plaintiffs and the same was of their ownership. The learned District Judge also held proved that the defendants action to open apertures including doors windows etc. in the southern wall of his house abutting on the plaintiffs property was likely to infringe the plaintiffs right. The learned District Judge therefore allowed the appeal setting aside the judgment and decree of the Trial court. The learned District Judge therefore decreed the plaintiffs suit declaring that the defendant the members of his family servants or agents are permanently restrained from putting any apertures doors windows or ventilations on the southern wall of his house bearing Gram Panchayat No. 957 more particularly described in para 9 of the plaint. ( 4 ) IT is this judgment and decree of the lower Appellate Court that are challenged by the original defendant in the present Second Appeal. ( 5 ) THIS Court while admitting the 773. Second Appeal has formulated the following substantial question of law: mr. Shah for the appellant gives an undertaking to this Court on behalf of his client that his client will not open any aperture in the disputed wall. ( 5 ) THIS Court while admitting the 773. Second Appeal has formulated the following substantial question of law: mr. Shah for the appellant gives an undertaking to this Court on behalf of his client that his client will not open any aperture in the disputed wall. In view of the question of law involved as to the relief to be granted in a suit of this type the Second Appeal is admitted. ( 6 ) THEREFORE the substantial question of law that is formulated is whether the relief that has been granted by the lower Appellate Court would be granted according to law or not. ( 7 ) MR. S. M. Shah learned Advocate for the Appellant-defendants submitted that the defendant has a right to enjoy his property in the way he likes and therefore the relief that has been granted to the plaintiffs is unreasonable and not according to law. In support of this submission Shri Shah relied upon the case of Shridhar Rambhau Mane v. Gujabai Mhasku Shewele 27 G. L. R. 198. In that case the defendant had opened a new Jali which the plaintiff wanted to close. the defendant resisted it. Therefore the plaintiff sued the defendant for a declaration that the defendant had no right to open new Jalis or lattices in the wall in dispute and for a permanent injunction restraining the defendant from interfering with closing of the said Jalis by the plaintiff from his side. The Bombay High Court held that if the Jali was new as was contended and as was found by the Trial Court it was clear that the plaintiff would have the right to close the Jali from his side and the defendant would have no right to obstruct him in doing so. This decision will have no application to the facts and circumstances of the instant case in view of the two decisions of this High Court in 11 G. L. R. 1003 and 20 G. L. R. ( 8 ) IN Patel Amba Natha v. Patel Virji Devji 11 G. L. R. 1003 it has been held that no one can place any obstruction in the way of any owner of a property in enjoyment of his property. The difficulty would only arise when the full and unfettered enjoyment of his property by an owner causes difficulty to or invades the rights of others. The difficulty would only arise when the full and unfettered enjoyment of his property by an owner causes difficulty to or invades the rights of others. When the defendants enjoyment of his property is to the detriment of the plaintiffs rights or is intended to create rights for himself which may derogate from the rights of the plaintiff to his property the plaintiff has a right to prevent him from doing so to the extent to which the defendants enjoyment of the property interferes with his enjoyment of his property or is intended to derogate from his rights either at present or in future. The defendants attempt to put up doors in his house abutting on the plaintiffs property is capable of producing at least two effects so far as the plaintiff concerned. It is likely to interfere with the plaintiffs exclusive enjoyment of his property and it is also likely in course of time to create easement rights for him. The plaintiff has a right to take steps to prevent the defendant from putting up apertures in his property the continued existence and enjoyment of which may create for his new rights derogatory to the plaintiffs right or adversely affecting them. ( 9 ) IN Kanji Virji v. Mohanlal Devraj 20 G. L. R. 773 the Division Bench of this High Court consisting of S. H. Sheth and A. N. Surti JJ. (as they then were) after referring to several decisions cited before it held that Section 7 of the Easement Act leaves no doubt about the fact that every owner of an immovable properly has a right to enjoy such natural benefits as flow from its situation However in case of two neighbours both have a similar right and therefore in the name of enjoying the natural rights accruing from its situation the owner of one property cannot subject his neighbour to a disability now or in future by which the latter will be prevented from enjoying the natural rights flowing from the situation of his own property. Therefore natural rights which a person enjoy in an orderly human society are such as are reconcilable with those of others and do not disturb the rights of others. ( 10 ) IT cannot be gainsaid that peaceful coexistence is the hallmark of every civilised society. No person can have absolute right. Therefore natural rights which a person enjoy in an orderly human society are such as are reconcilable with those of others and do not disturb the rights of others. ( 10 ) IT cannot be gainsaid that peaceful coexistence is the hallmark of every civilised society. No person can have absolute right. His rights are conditioned by the needs of the society in which he lives. Where similar rights are available to all or to a section of the society such rights must be reconciled. Where private reconciliation of such right is not possible recourse must be had to the adjudicatory machinery established by the State. Parties to a dispute cannot be left to fend for themselves to protect their rights. Right to property is indeed an important one but it cannot be stretched to the extent of saying that if the defendant in the name of enjoying his property takes step now to injure the plaintiffs right in future the plaintiff cannot seek the assistance of the Court though he can take private action to protect his rights and to prevent the emergence of the defendants rights in future. This concept is the direct result of the belief that property is power and is sacrosanct and that it is all in all in life. It therefore follows that every person has a right to enjoy the property without disturbing his neighbour in doing so. Both have equal rights. Mutual respect for each others rights must exist and must be enforced. ( 11 ) IN view of the abovesaid settled legal position if the defendant injures the plaintiffs right or threatens to injure them or if the plaintiffs reasonably apprehend such a cause of action to sue the defendant. They cannot be left to adopt a private remedy. If the plaintiffs have a right to take a private action they have also a right to seek the assistance of the Court to protect their rights against any injury in future. ( 12 ) THE lower appellate Court has rightly held that the oral evidence adduced by the defendant is quite contrary to the documentary evidence on record. Therefore the evidence of the defendant is not reliable. ( 12 ) THE lower appellate Court has rightly held that the oral evidence adduced by the defendant is quite contrary to the documentary evidence on record. Therefore the evidence of the defendant is not reliable. The findings of fact that the land to the south of the wall of the defendants house is of plaintiffs Ownership and in their possession and enjoyment since 1939 are binding on this Court in entertaining this Second Appeal u/s. 100 of the Code of Civil Procedure 1908 Therefore the intended action of the defendant to open apertures including doors and windows on the southern wall of his house abutting on the plaintiffs property is likely to infringe the plaintiffs right. ( 13 ) THE learned Advocate for the Appellant Shri Shah urged that the appellant-defendant is prepared to give an undertaking that he will not claim any right as to easement in future and as such the judgment and decree under appeal may be modified accordingly. However the right of privacy of the plaintiffs and their family-members is likely to be adversely affected in modifying the decree as is sought by Mr. Shah. In the result the appeal fails and is dismissed with costs. Appeal dismissed. .