JUDGMENT - A.S. BAGGA, J.:---This second appeal has been filed against the judgment and order dated 16th December, 1983 passed by the Extra Assistant Judge, Nanded wherein the suit of the respondents (original plaintiffs) was decreed after setting aside the order of the dismissal of the suit dated 23rd August, 1982 passed by the C.J., J.D., Kinwat.

2. The respondents-original plaintiffs brought a suit for perpetual injunction and mandatory injunction against the present appellant.

3. The plaintiff No. 1 and father of the defendant constructed a house with a common wall. The said wall had no window or ventilators. The plaintiffs constructed a new house leaving a space of four and half feet from the said common wall. This four and half feet space was left open by the plaintiffs for using the Bath Room. It was stated that the defendant demolished some portion of the wall and started digging foundation. The plaintiffs protested and obstructed the work of digging of foundation of the defendant. The defendant agreed before the Panchas that he would not keep windows or ventilators in the new wall or make any projections on the common wall of four and half feet if he was allowed to construct the house using the common wall to the extent of one and half feet.

4. The defendant however, in breach of the said agreement, fixed window, in the new wall. The plaintiffs protested. The plaintiffs, therefore, filed the suit for mandatory injunction against the defendant for removal of the said windows or projections.

5. The appellant-original defendant denied that there was a common wall. It was stated that it exclusively belonged to him. The destruction of the alleged common wall and agreement in presence of the panchas or that in the new wall constructed by him, ventilators or windows have been built, are also denied. The defendant stated that he had started the construction after obtaining due permission from the Gram Panchayat of Shirpur. The Sarpanch, after due inspection, granted permission to the defendant to construct a new house. There was no objection by the original plaintiffs. Finally, the defendant stated that he has window in the new wall but, not in breach of the agreement. Hence, there was no question of directions or removal of the windows or projections.

6. The learned trial Judge after framing certain issues and recording evidence as was adduced by the parties, dismissed the suit of the plaintiffs observing,---

"The lintels are at the height of more than 8 feets from ground level. In any way the lintels cannot come into contact with any object. Moreover, the proposed windows are not coming over the stair's base and hence the question of touching of lintels to the heads of person going through the stairs does not arise. The plaintiffs' map itself shows that the lintels are not coming on the way of stairs."

Finally, the learned trial Judge observed that the defendant has got every right to open the windows and lintels on it and the plaintiffs have no right to close the windows and prevent the defendant from laying lintels over windows.

7. The matter was taken up in appeal. The learned Appellate Judge below, after taking into consideration the evidence on record, held that the southern wall was a common wall. He further observed that admittedly, there were no windows or ventilators in the southern wall. Observing further that the windows and lintels, if allowed to remain in the southern wall, would infringe the easementary rights of the respondents-original plaintiffs, he proceeded to set aside the order of dismissal of the suit and decreed the suit of the respondents. It is against this judgment and decree the present appeal has been filed.

8. I have heard Shri S.G. Karlekar, learned Counsel for the appellant and Mrs. Sangeeta Kulkarni, learned Counsel for respondents.

9. On persual of the record, it would be seen that there is clear finding of the Courts that the windows and ventilators which have been fixed, are on the southern wall, w

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