A.S. SUPEHIA, J.

1. Being aggrieved and dissatisfied with the judgment and decree dated 04.12.1986 passed by the Civil Judge (Junior Division), Karjan in Regular Civil Suit No.189 of 1881, the appellants-original defendants have preferred present appeal, whereby the Civil Judge held that the defendants-original appellants herein has no right to make any construction on the eastern side of the property within 12 feets and the defendants-original appellants herein should have remove the pillars and slat covered within 12 ft.

2. The brief facts leading to filing of the present appeal are as under:-

2.1 It is the case of the respondents-original plaintiffs that they are staying in the same street of village:Kandari, Ta:Karjan. The respondents are in the ownership and possession of the suit property situated on easter side. It is stated that the appellants had applied for construction to the Kandari Gram Panchayat and accordingly, the order was passed granting permission for construction on 01.03.1978. At the same time, it is averred that the Kandari Gram Panchayat has permitted the appellants to construct suit-gabhan beyond 32 ft. towards east-west side. The appellants were permitted to keep open about 12 ft. land towards east-west side immediately after construction of 32 ft. It is stated that, if the appellants will construct beyond permission, it would affect respondents' right of light and air. It is stated that the appellants were permitted to construct about 32 ft. towards east-west side and the remaining portion of 12 ft. was to be kept open for the cattle shed. Thus, the appellants were required to keep 12 ft. open land towards east-west side. According to the respondents, the appellants have committed breach of the terms of permission granted by the Gram Panchayat, as they have left only 3.5 ft. open land instead of 12 ft. It is stated that the appellants be restrained from constructing over the suit land, as it is on the way of easementary right (i.e. light, air and rain water) of the respondents and the respondents have prayed that the appellants should keep 12 ft. open land from the respondents land towards eastern side, and thereby, the respondents have prayed for restraining the appellants from disturbing the easementary right for light, air and rainy water, as the predecessor of the appellants also admitted their rights in earlier proceedings of Regular Civil Suit No.43 of 1964 by way of compromise.

2.2 It is stated that whatever permission is given by the Gram Panchayat for keeping the 12 ft. open place is beyond the right of the panchayat, and therefore, as per the instructions given by the panchayat, the appellants are not bound to follow accordingly.

3. Mr.Patel, learned advocate for the appellant has submitted that that the plaintiff no.1 - respondent no.1 herein himself deposed before the Court vide Exh.63 that the house of the respondents and the appellants are situated in opposite side. From the respondents' houses, the houses of appellants are situated on western side. It is the say of the respondent no.1 that between the house of the parties, there is 12 ft way. The respondents have narrated the measurement of his property i.e. plaintiff's property east/west-48 ft. and south/north 49 ft. The predecessor in title of the appellant's property was of one Himmatlal Revashankar Joshi. The respondent has also narrated that in the year 1974- 75, by exchange of properties, the appellants have taken the property from original owner Himmatlal. In his property, for lights and air, windows, doors and iron-sheets are put up. For the disputed land, it is the say of the respondent that the permission from the village panchayat for construction is given to the appellants for which there are certain restrictions i.e. the appellants are permitted to construct north/south 59 ft. and east/west 44 ft. and the appellants are directed that 12 ft land was to be kept open for the house of the respondents and that resolution is p