1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.89 OF 1989 Shaikh Khutubuddin s/o Sk. Channu, age major, occup. househod, r/of Haldi galli, Vaijapur, district Appellant/ Aurangabad. orig.pltff. versus 01. Panch Committee Saudagar through its Chairman namely Shaikh Hussain Shaikh Dagdu. 02. Shaikh Abbas s/o Shaikh Imam, age major, occupation peon in Municipality, Vaijapur r/of Vaijapur. 03. Municipal Council, Vaijapur, Respondents/ through its Chief Officer. orig.defts. ------ Shri K.G. Khader, Advocate, for the appellant. Shri P.F. Patni, Advocate, for Respondents No.1 and 2. Coram : P.R. Borkar, J. Date : June 07, 2010 ORAL JUDGMENT 01. This second appeal is preferred by the original plaintiff, being aggrieved by partial refusal of the reliefs claimed in the suit both, by learned Civil Judge, Junior Division, Vaijapur while deciding R.C.S. No.410 of 1976 on 30.4.1985 and by the learned II Additional District Judge in Regular Civil Appeal No.201 of 1981 decided on 21.4.1986 modifying the decree passed by the learned Civil Judge. 2 02. Brief facts giving rise to this second appeal are as follows; It is no more disputed that present appellant-plaintiff is the owner of the new municipal house No.1908 (old No.787). It is also not disputed that on southern side of the house of the plaintiff, there is property belonging to defendants Nos.1 and 2 who represent Halidwale community. Plaintiff claimed that he has a right to release waste water of his house on southern side of his property through a drainage which had been in existence for more that 35 years. In the plaint, plaintiff also claimed that there has been a door in southern side of his house for last 35 years and he has a right to enjoy both, the door and the drainage on southern side of his property and the defendant is unnecessarily obstructing the suit house. He, therefore, filed suit for declaration and injunction. The learned Civil Judge partly decreed the suit and declared that the plaintiff has a right of drainage towards southern side of his house through open space and granted perpetual injunction against the respondents- defendants restraining them from obstructing the said use and enjoyment by the plaintiff. It is, however, 3 held that the plaintiff-appellant has no right to fix door on the southern side of his house. It was directed that the plaintiff should remove the door fixed on southern side and close it by constructing wall at his costs. 03. The matter was taken up in appeal before the District Court, at the instance of the plaintiff. The District court framed following issue vide order dated 30.9.1983 and referred the same to the trial court for recording finding thereon; " Is it proved that the open space to the south of the Plaintiff's house and to the east of Defendant No.1's house in which the Plaintiff intends to open a door and keep his gutter belongs to Defendant No.1 and is marked by letters "ABCD" in the map with the plaint?" 04. As per the said order of the District Court, the trial court decided the said issue and answered the same in the negative and thereafter the appeal was taken up for hearing by the learned District Judge. The First Appellate Court held that the plaintiff has right to drainage through open space on southern side of his house, and accordingly confirmed the decree passed by the trial court and also added that the 4 plaintiff-appellant is entitled to remove any obstruction that is caused in the drainage. It is also held that the plaintiff-appellant has right only to fix window, but he could not open a door on the southern side of his house. 05. While deciding the appeal, the District Court in para.19 of its judgment came to the conclusion that the open space on southern side which is marked by letters "ABCD" in the map annexed with the plaint and in which plaintiff sought to open the door, belongs to Defendant No.3-Municipal Council, Vaijapur. However, the right to open door was rejected on the ground that no right of easement to open a door on southern side of plaintiff's house was proved. Being aggrieved thereby, this second appeal is filed. 06. This second appeal is admitted by order dated 15.12.1989 on substantial questions of law stated in following ground Nos.6,7,8, and 11 of the appeal memo. (6) The learned Judge with Appellate Court has taken note of the said finding on the additional issue and also conclusively held that Defendants Nos.1 and 2 are not the owners and their title is not proved. The learned Judge allowed the Plaintiff to fix a 5 window but declined to award the relief of fixing the door. The disparity in on the one hand allowing to open up window and on the other declining to fix up a door is substantial question of law. (7) There is another aspect of the matter when the drain is allowed to flow on open space and also a window allowed to open up, there is no legal obstacle in the way of plaintiff to have a door as well. (8) The rule is that every space having not been established as belonging to any person, belongs to the Government without proof. When the drain passes through open space there is no earthly reason why door is not allowed to be fixed. (11) It is again very material to note that in (if) the mandatory injunction has been granted. In the face of grant of relief of mandatory injunction there is absolutely no scope to deny him relief of fixture of door, overlooking the southern side open space. The document exhibit 66 which is a sale-deed does not appear to have been properly read and appreciated. Misreading of document is another substantial question of law for this appeal. 07. Heard Shri K.G. Khader, learned Advocate for the appellant and Shr P.F. Patni for Respondent Nos. 1 and 2. 08. It is argued by the learned Advocate Shri Khader that having come to the conclusion that the open space marked ABCD did not belong to Respondents-defendants No. 1 and 2, but it belonged to Respondent-Defendant No.3 Municipal Council, there was 6 no question of considering right of easement as that was not the case of the plaintiff. Simple question is when the open space marked ABCD on the southern side of the plaintiff's house belongs to defendant No. 3- Municipal Council as held in paragraph 10 of the judgment of the district court, whether defendants No. 1 and 2 had any right to obstruct construction of a door by the plaintiff on the southern side of his house. Shri Patni, learned counsel for Defendants No. 1 and 2 argued that the plaintiff, as per municipal law, would not be entitled to open new door or window without permission of the municipal council. Advocate Shri Patni also drew my attention to Exhibits 87 and 88 which are revision petition and decision thereon respectively by the learned Additional Collector, Aurangabad against the grant of permission to the plaintiff by the Municipal Council, Vajapur to open the door on southern side of his house. 09. One thing is very clear that there being concurrent findings of fact that the open space i.e. the portion marked ABCD as shown in the map annexed to the plaint does not belong to Defendant Nos.1 and 2, but the same belongs to the municipal council, defendant Nos.1 and 2 would not be entitled to 7 obstruct opening or construction of door/window by the plaintiff in said open space on the southern side of his house which belongs to the Municipal Council. However, at the same time, while making any changes in the house, permission of municipal council would be necessary as required by law. 10. The decision by the learned Additional Collector, Aurangabad on revision shows that it was filed by present defendant No.1 Panch Committee Saudagar and as per defendant's case, the said open space belonged to it and the Chief Officer, Municipal Council had no authority to decide the dispute of civil nature and, therefore, defendant No.1 had challenged the permission granted to the plaintiff by the Municipal Council and prayed for cancellation of the same. The learned Additional Collector has come to the conclusion that the Chief Officer, Municipal Council had no authority to go into the rights of the respective parties and, therefore, permission ought not to have been granted. Consequently revision petition was allowed and the permission granted by the Chief Officer, Municipal Council was cancelled. Therefore, it is clear that the cancellation of permission for construction of door was in the 8 peculiar circumstances. 11. In the circumstances, this second appeal is allowed. It is made clear that the plaintiff may apply afresh to the municipal council for permission to open door/window on southern side of his house opening in the open space marked ABCD in the map annexed to the plaint belonging to the Municipal Council. Such application shall be considered by the municipal council on its merit in accordance with the law. With above clarification second appeal is disposed of. pnd/sa89.89 (P.R.BORKAR, J.) 9