Advocates:
['BALENDRA KUMARSELF', '', 'PRADEEP SINGH', 'MANISH SHARMA']

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Second Appeal No. 54/2012

Jagmohan Lal (since deceased) through his legal heirs:-

1/1 Balendra Kumar S/o Jagmohan Lal

1/2 Rajbihari S/o Jagmohan Lal

1/3 Shravan Devi W/o Jagmohan Lal

1/4 Lalita Sharma D/o Jagmohan Lal

1/5 Lajwanti Sharma d/o Jagmohan Lal

1/6 Beena Sharma d/o Jagmohan Lal

1/7 Seema Sharma d/o Jagmohan Lal

1/8 Vandana Sharma d/o Jagmohan Lal

All R/o Chawni, District Sikar.

----Appellant/plaintiffs

Versus

1. Khemchand S/o Joharilal (since expired on 08.02.99 during

pendency of first appeal)

2. Ghanshyam S/o Joharilal (since deceased) through his legal

heirs

2/1 Mohanlal (since deceased) through

2/1/1 Mishri Devi W/o Mohanlal

2/1/2 Dinesh Kumar S/o Mohanlal

2/1/3 Rakesh Kumar S/o Mohanlal

2/1/4 Sulochna D/o Mohanlal

2/1/5 Shobha d/o Mohanlal

2/2 Mahesh Kumar S/o Ghanshyam

2/3 Kailash Chand s/o Ghanshyam

2/4 Babulal S/o Ghanshyam

2/5 Shanti Devi d/o Ghanshyam

2/6 Ratan Devi D/o Ghanshyam

2/7 Smt. Lada W/o Ghanshyam

All R/o Chawni, Neem ka Thana, District Sikar

----Respondent

For Appellant(s)

:

Mr. Pradeep Singh through VC

For Respondent(s)

:

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

11/07/2022

1.

This second appeal has been preferred by and on behalf of

appellant-plaintiff feeling aggrieved by the judgment and decree

(2 of 7)

[CSA-54/2012]

dated 04.03.1998 passed by Civil Judge (JD) Neem ka Thana in

Civil Suit No.215/93 (88/78) whereby and whereunder although

the plaintiff’s suit for prohibitory injunction has been decreed but

the trial court has declined to grant decree for mandatory

injunction and further the judgment and decree has been affirmed

in first appeal No.18/1998 passed by Additional District Judge,

Neem Ka Thana, District Sikar vide judgment dated 15.10.2011

filed by the appellant-plaintiff.

2.

Heard counsel for appellant and peruse the material available

on record.

3.

The dispute between the parties is in relation to a gali having

width of 3 ft. situated towards north of plaintiff’s haveli. Plaintiff

instituted a civil suit on 28.06.1978 alleging inter alia that the gali

in question is of ownership and possession of plaintiff on the basis

of patta of haveli (Exhibit-1A) and since defendants have opened

their windows, ventilators, nala, pernala of their house in first

floor, second floor and third floor towards the gali in question

which violates the right of privacy of plaintiff, hence, a mandatory

injunction be issued against defendants to close their windows,

ventilators, nala, pernala. Further the defendants be restrained

not to open their windows, ventilators, nala, pernala in the gali

and not to disturb the right of privacy of plaintiffs.

4.

It was averred in the plaint that earlier litigation between

predecessors of the parties, Chief Court decided the dispute finally

but thereafter, predecessors of both parties entered into an

agreement dated 24.05.1960 (Exhibit-C-6). As per agreement,

plaintiff’s father permitted defendants to have open their windows,

ventilators, nala, pernala in the first floor but defendants have

opened the windows, ventilators, nala, pernala in the second and

(3 of 7)

[CSA-54/2012]

third floor as well which is against the terms of agreement as well

as causing damage to the walls of the plaintiffs and infringing the

right of privacy of the plaintiffs.

5.

Defendants submitted written statement alleging inter alia

that the gali in question is of common use as has already been

adjudicated in the previous litigation by the judgment of Chief

Court.

6.

The trial court, as per rival pleadings of parties, framed

issues and recorded evidence of both parties.

7.

On appreciation of pleadings and evidence on record, the

trial court observed that plaintiff’s claim of having absolute

ownership and possession of gali in question is based on patta

whereas in the previous litigation, the Chief Court has decided the

gali in question to be