1. This appeal relates to a well and a temple in the Gujrati Muhalla of Moradabad City. It is now found, as a fact that both the wetland the ternple are wakf property. The defendants, who claimed both the well and temple as their own, have roofed over the well and enclosed it by walls on three sides and by the southern wall leave also blocked the only access to the temple, which was through a covered passage called a chhatta, to the south of iyhere this wall has now been built. The plaintiffs sue for and have been granted a decree for the demolition of these constructions and an injunction preventing the defendants from making any encroachment or construction on the well or in the chhatta so as to prevent the plaintiffs or the muhalla people from using the well or having access to the temple. The plaintiffs are residents of the muhalla and two of them are trustees of the temple. Their case is that the well and platform have been from of old used by the muhalla people who have also customary right of worship at the temple. In paragraah 5 of the plaint it is stated that the muhalla people have all along been drawing water from the well, have been using the platform for worship as well as for bathing and washing, have been utilising it on occasions of rejoicing and mourning and have been using the temple all along for worship. These rights have been interfered with by the defendants' constructions of which they complain.
2. The case was strenuously fought in both the lower Courts on the question whether the temple and the well were private, property and whether the plaintiffs had any right of suit. These points' having been found against her,; the, defendant has now shifted her ground and in appeal, to this Court her learned Counsel contends on her behalf that the; reliefs granted by the Court below were, not necessary in order to safeguard the rights of the plaintiffs. Her case, as now, put, is that the plaintiffs still have access to the Avell from the west and that the roofing over of the well in no way interferes with its use for drawing, water. As regards the wall to the south it cannot be denied that this at least does restrict the access of the public to the temple and that the use of the well is further interfered with, by the aperture, which the defendant has made in the roof. On behalf of the respondents it is replied that the constructions made by the defendant and the roofing over of the well do seriously circumscribe the plaintiffs' right to use the well and the ehabutra not only for drinking water but also for purposes of worship and other occasions of festival and mourning. We think that this contention is well founded, and it is supported by the decision in Shankar Lal v. Motar Mal A.W.N. (1889) 133 on which the Court below has relied. That was a very feimilar case to the present and it was held that the plaintiffs were entitled for tha preservation of their rights to the removal of the constructions which had been made on the well and the ehabutra in dispute. In our opinion the decree of the Court below is correct and we dismiss this appeal with costs including in this Court fees on the higher scale.