IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI

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ON THE 20 OF JANUARY, 2026 SECOND APPEAL No. 2021 of 2025 KAMIL Versus ABDUL SALAAM SHEIKH Appearance:

Shri Amit Dube, learned counsel for the appellant.

Shri Ramesh Yadav, learned counsel for the respondent.

ORDER The present appeal is by the defendant against the concurrent findings of two Courts as recorded vide judgment and decree dated 28.2.2025 passed in RCA No.14/2022 affirming the judgment and decree dated 31.10.2022 passed in RCS No.34/2017.

2. The suit was filed by the respondent for claiming easementary rights, permanent injunction and mandatory injunction. It was averred in the plaint that the plaintiff is a permanent resident of Jawad, who is presently residing in Mumbai and occasionally comes to Jawad. The defendant is the son of daughter of Abdul Raheem. he is running a Hotel in Momin Mohalla, Jawad. It was further averred that the appellant is owner and title holder as well as in possession of a shop situated in Ward No.9. The said shop was purchased by his father from one Anwar Baig vide registered sale deed dated 21.4.1969. It was stated in the plaint that according to the sale deed in the West side of the shop Barsati Gali Sharakati of joint ownership is situated and thereafter house of Abdul Raheem. It was alleged in the plaint that on this open land of Barsati Gali the defendant has raised construction of walls and teen shed because of it the window and ventilation, which was for air and light are obstructed and the canopy above the window was damaged due to the construction. It was also alleged that no permission for construction was taken by the defendant from Nagar Parishad, Jawad for such construction. As such, the same is illegal.

2.1 The defendant filed its written statement alongwith counter claim and asserted that there was no Barsati Gali at the West side of the shop of the plaintiff. In fact, there was a house of Abdul Raheem, which was having teen shed on which defendant has constructed a shop. It was also averred that the house number of the said house is 91/3. The defendant/appellant is paying tax of the said property and in fact on the North side of the suit property the Barsati Gali was situated, which is closed at present. It was further averred that no encroachment was made on the suit property. Apart from this, the defendant by way of counter claim sought relief for declaration of his title on the strength that his mother was Shamim Bai, who was daughter of Abdul Raheem. The said Abdul Raheem has executed a will in favour of his daughter on 14.6.1991 in which it was mentioned that the disputed property is a Kaccha house and the same will remain in the share of Abdul Raheem and after death of Abdul Raheem defendant being son of Shamim Bai has become owner of the said property. For the reason that on 4.4.2008 he was given ownership by tying turban on his head in front of Panch witnesses and since then he is in possession of the said property.

2.2 The plaintiff denying the averments of the counter claim stated that there is no such custom in the Muslim society for tying turban and the defendant cannot be a adopted son of Abdul Raheem. The learned trial Court in view of the respective pleadings framed as many as 10 issues. Issue No.1 regarding joint ownership of Barsati Gali Sharakati was decided against the plaintiff as well as defendant. However, rest of the issues were decided against the defendant, thereby decreeing the suit. The trial Court found that although the defendant is in possession of the suit property, however, he is not title holder/owner of the same. The trial Court also found that there was obstruction in the easementary rights of the plaintiff. Thus, a decree was granted for removal of construction within a period of two months so as to restore the easementary rights of light and air of the plaintiff/respondent.

Apart from this, decree for permanent injunction was also issued.

2.3 The fi