BERI, J.—Defendant Bherulal has preferred this appeal against the judgment and decree dated the 13th October, 1960 passed by the Civil Judge, Udaipur in a suit for injunction.

2. The facts giving rise to this litigation are unusual. Bherualal after obtaining the permission of the City Corporation, Udaipur opened a window and put in five spouts over a lane situate in the locality known as Khemsara-ka-Timba, Udaipur. Five persons residing in the said locality instituted a suit principally against Bheru Lal and the Udaipur City Corporation on the ground that the plaintiffs have been using the lane in question for easing themselves and on account of the opening of the window by the defendant Bherulal towards this lane it will prejudice their privacy in the exercise of their right of easing themselves in the lane. Bherulal and the City Corporation, Udaipur resisted the suit inter alia on the grounds that the act of the plaintiffs was a public nuisance in which no right of easement could arise and that Bherulal had constructed the said window and the spouts after obtaining the necessary permission from the City Corporation. The Munsiff, who tried the suit, ordered that Bherulal may place a gauze wire on the window opened by him for a period of six months so that within that period the plaintiffs may be able to construct latrines for themselves and meanwhile this window may not affect their privacy or safety. On the question of the spout the learned Munsiff ordered that for a proper and regulated drain of water a pipe be fitted therein and from the third storey only rain water be discharged. Against this judgment and decree the plaintiffs preferred an appeal and Bherulal and the City Corporation Udaipur filed cross-objections. Both the appeal and the cross-objections were considered by the Civil Judge, Udaipur and he came to the conclusion that the order of the Munsiff in directing Bherulal to fit a spout opening in the second storey with a pipe line was correct but on the question of gauze wire he differed with the conclusion of the Munsiff and held that Bherulals gauze wire must continue for ever. Bherulal has now come up in second appeal.

3. Mr. Mehta, appearing for the appellant, contends that the decision contained in Ex.1 dated the 5th June, 1889 came to be modified by the order contained in Ex.A. 1 dated 9th November, 1947 and also Ex. A. 2 dated 10th October, 1945. The plaintiffs, therefore, argued the learned counsel, have no right as claimed by them in the lane in dispute. He further contended that the alleged right of the plaintiffs amounted to a public nuisance in regard to which no easement could ever ripen. Besides, the learned Munsiff had given the period of six months only to extend an added convenience for the benefit of the plaintiffs and even that the learned Civil Judge has set aside thereby indirectly recognising the right of the plaintiffs. No body appears for the respondents.

4. Both the Courts below have held that the plaintiffs have not succeeded in proving that they are the owners of the lane in dispute. The only question which survives for consideration is whether the plaintiffs in the circumstances of the case acquired a right of easement to ease themselves in an open lane and if so are they entitled to get protection for this right by preventing the defendant Bherulal from keeping his window over-looking this lane absolutely open. It is true that the plaintiffs right to ease on the land in dispute was taken notice of as early as 5th June, 1889 and was indirectly recognised as would be evident from Ex. 1. This, however, came to be questioned in Ex. A.2 dated the 10th October, 1945 wherein the Public health Engineer after inspection of site expressed the opinion that even the construction of public latrines in the lane in question would be injurious to health. In Ex.A.1 the right to use this lane as an open latrine was also questioned. The first point that I will have to consider is whether a long usage of thi

Click Here to Read the rest of this document