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Regular Second Appeal No. 81 of 1959, decided on 20th February 1968.

Ss. 54 & 55‑Suit for perpe tual injunction‑Owner of adjoining land cannot be restrained from opening or closing apertures on his own premises unless by doing so he invades privacy or any other pre‑existing and well established rights vested in his neighbour‑A, claiming to be owner of a path‑way, alleging that B had wrongfully opened door facing path‑way and was further threatening to open windows, ventilators and drain towards said path‑way‑Decree for perpetual injunction prayed for by A, directing B to close door arid refrain from opening windows, ventilators, etc. towards path‑way‑Trial Court granting decree as prayed fur‑Held, Court, in circumstances, was not justified in passing decree as prayed for‑High Court modified decree and granted injunction in favour of A only to the extent that B was prohibited from using door‑way in such manner as to pass and/or repass over path‑way belonging to A‑Easements Act (V of 1882), S. 35.

Kashi Nath and others v. Ram Jiwan arid others A I R 1933 Lah. 847; Pir Agha Muhammad Hussain Jan Pir Haji Abdur Rahim v. Ilyas Haji Wahid Dino A I R 1948 Sind 36; Amiro Bibi v. Syed Azoof I L R 18 Mad. 163 and Durga Parashad and others v. Sheo Parashad 18 A W N 270 ref.

1943 P L R J & K 122 and Rain Kanwar v. Lt.‑Col. Muhammad Sher Khan A I R 1940 Lah. 307 held not applicable, S. M. Anwar for Appellants.

Ghulam Abbas Jafary for Respondents.

Date of hearing : 14th February 1968:

This is a second appeal against the judgment and decree dated the 28th of October 1958, of the learned Senior Civil Judge, Sargodha, by which he dismissed the appellants' appeal and confirmed the decree for a perpetual injunction awarded by the trial Court against them.

2. Respondents Nos. 1 to 3 had brought a suit against the appellants on the allegations that the path‑way shown as in the site‑plan (Exh. P. W. 3/1) belonged to them and defendants Nos. 6 and 7 (now respondents Nos. 4 and 5), that the appellants had wrongfully opened a door on to the said path‑way at the place marked "X" in the Site‑plan and were threatening to open windows, venti lators and drains towards the said path‑way. A decree for perpetual injunction was sought against the appellants directing them to close the door opened by them at the point marked X" in the plan and refrain from opening any window, ventilator or drain, etc. towards the said path‑way. The suit was resisted and the parties went to trial on the following issues:‑---

(1) Whether the plaintiffs and defendants Nos. 6 and 7 are owners of the way in suit

(2) Whether the plaintiffs and defendants Nos. 6 and 7 are in possession of the way in suit to the exclusion of all others

(3) Whether defendants Nos. 1 to 5 have any right of way over the way in the suit

(4) Whether defendants Nos. 1 to 5 have any right of easement over the way in suit and are entitled to keep or open doors, ventilators, windows, etc. in it

(5) Relief.

The learned trial Court found Issues Nos. 1 to 4 in the plaintiffs' favour and granted a decree for permanent injunction against the appellants, as prayed for. The appellants, filed an appeal which was dismissed and have now come up in second appeal.

3. In arguments the learned counsel for the appellants did not challenge any of the findings arrived at by the Courts below. His only submission was that the decree as granted was not in accordance with law. It was contended that even with the path‑way marked in the site‑plan belonged to the respondents and even if the appellants had no right of easement on to that path‑way the respondents had no right to interfere with the appellants' user of their own premises and if they, in exercise of their right, broke any of their walls at any place the respondents could have no grievance so long as none of their rights was invaded or threatened as contemplated by section 54 of the Specific Relief

Act, 1877. Reliance was placed on the authorities reported as Kashi Nath and others v. Ram Jiwan and others (A I R 1933 Lah. 847), Pir Agha Muhammad Hussain Jan Pir Haji Abdur Rahim v. Ilyas Hail Wahid Dino (A I R 1948 Sind 36). Amiro Bibi v. Syed Azoof (I L R 18 Mad. 163) and Durgha Parashad and others v. Sheo Para had (18 A W N 270). These authorities generally support the proposition of law urged by the learned counsel for the appellants. It was laid down in Kashi Nath and others v. Ram Jiwan and others that:‑--

"It is conceded that every owner has got the right to open apertures in his own wall and unless by doing so he invades the privacy or any other pre‑existing and well established right vested in his neighbour, the latter cannot force him to close the apertures. The neighbour's remedy is to build on his own land or otherwise obstruct the apertures."

In 18 Allahabad Weekly Notes 270 the decree granted by the lower Courts for a mandatory injunction permitting the closing up of a door was set aside and instead a decree was granted for perpetual injunction prohibiting the defendants from using the irdoor‑way in such a way as to pass and re‑pass over the land belonging to the plaintiff. Learned Counsel for the respondents merely mentioned 1943 P L R J & K 122 which was not available to him and referred to Ram Kanwar v. Lt.‑Col. Muhammad Sher Khan (A I R 1940 Lah. 307). This case, however, does not seem to give any assistance for the point under discussion, namely, the form of the decree. I am in respectful agreement, with the authorities cited by the learned counsel for the appel lants and in accordance with the proposition of law laid down therein, I accept the appeal, set aside the judgment and decree awarded by the Courts below and instead grant a decree for perpetual injunction in favour of the plaintiffs and defendants Nos. 5 and 6 prohibiting the defendants from using their door‑way marked "X" in the site‑plan (Exh. P. W. 3/1) in such a manner, as to pass or re‑pass over the path‑way belonging to the plaintiffs and defendants Nos. 6 and 7 as shown by the letters in the site‑plan mentioned above. The appellants have succeeded only in part and on a mere technical ground. The parties, therefore, are left to bear their own costs throughout.

K.B.A. Appeal partly accepted.

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