(1) The suit from which this second appeal arises was instituted by the plaintiff-respondent in the Court of the Civil Judge (J. D) at Limbdi against the defendant-appellant for a permanent injunction restraining the defendant from tethering cattle in his Pali and keeping utensils and agricultural implements and also for a and agricultural implements and also for a permanent injunction restraining him from causing obstruction to him in tethering cattle or using the Pali in any way he liked and for other incidental reliefs in the suit, inter alia alleging that the suit Pali belongs to him and that the defendant has no right to tether cattle or keep any such implements so as to obstruct him in enjoyment thereof.
(2) The defendant-appellant resisted the suit inter alia contending that the Pail in front of his house belongs to him and not to the plaintiff as alleged: that he had allowed the plaintiff to construct a Gaman as he was his neighbor and he has to remove the same when called upon to do so, that he has a right to use and enjoy the Pali in front of his house in any manner he liked and that, therefore, the suit was liable to be dismissed.
(3) The trail Court raised the issues and in its opinion the Pali in front of the houses of the parties extending to the wall of Thaker Mandri on the East and between the two Kodyas of the plaintiff belongs to the plaintiff and that the defendant had no right to tether cattle or put any utensils and implements in the Pali in front of his house. In the result therefore, he directed the defendant to remove the wooden he from near the southern kodya and also all other utensils and implements if any, from the Gaman. The defendant is further restrained from doing any act that would interfere with the plaintiff's reasonable enjoyment of the dispute Pali. Feeling dissatisfied with that order passed on 30th November 1957 by Mr. J. S. Bhat Civil Judge ( J. D) Limbdi, the defendant preferred Civil Appeal No. 40 of 1958 in the Court of the District Judge Zalawad Division. The same issue regarding the ownership in respect is the disputed Pali was raised and he found that it belonged to the plaintiff. In the result the appeal was dismissed with costs aggrieved by that decision passed on 30th April 1959 by Mr. V. M. Solanki, District Judge Zalawad division. Surendranagar, the defendant has come in appeal.
(4) Mr. Shah, the learned advocate for the appellant, contends that while he can have no objection to the finding about the ownership of the Pali which is in front of the plaintiff's house, the ownership of the Pali in front of the defendant. All that the plaintiff can claim in respect of that portion of the Pali would be has right of passage for going on the southern side and of that purpose, he so that there would no doubt have to keep that land open or interference with the right of the plaintiff to pass by that side. Reliance was placed on a case of Mahamsaheb Ibahimsaheb v. Tilchand Abheerchand Marwadi, 24 Bombay LR 373 = (AIR 1922 Bom 243). Now this aspect of the case does not appear to have been properly considered by the learned appellate Judge. What the plaintiff is required to established is his title over Augan space in front of defendant's house. There is no open space. There can hardly arise question of his claim by adverse possession of that space. Which is obviously in front of him. On the other hand, it appear prima facie evident that open site in front of a itself and he becomes the owner thereof. Similarly possession of the house to which it appertains. In the case of 24 Bom LR 373 = (AIR 1922 Bom 243), it has been is held and the following pertinent observations can well hold god in the present case:-
'possession of open sites goes naturally with the possession of the property to which they adjoin. If the defendant asserts his rights over those sites, he must show in the absence of any evidence, that the sites ceased appurtenant to property and that he has been in possession adversely against the owner of the property. In such a case, the fact of the plaintiff's title comes to his aid with greater force; and unless the defendant can show that he has been in possession adversely to the plaintiff for more than twelve years, the plaintiff will be entitled to a decree.'
(5) The plaintiff has not been able to show any such ownership over that open space, and the only thing which he can claim is to have right to ;passage through protected. The defendant has to use it subject to that right of that respect. It was however said that on two occasions the plaintiff had protested against the defendant who was tethering a mare in that space and he had removed the same and had even discontinued such user through the intervention of the leading persons of the village. But that evidence does not established his having agreed or conceded to the space as of Th. plaintiff. He may have reasonably conceded to discontinue tethering of his mare a s that would cause obstruction to the passage of the plaintiff or even may amount to a nuisance which the plaintiff would be entitled to have it removed from nearby his house and from where he has to pass by. The plaintiff has no document of title to show ownership over the open space in front of the defendant's house. The user of the defendant of that space shows ownership his over the same and there can be no claim of plaintiff's adversely holding it. But as observed in the case referred to hereabove, the possession of open sites naturally goes with the property to which they appertain. No other person can have ownership over the front portion of somebody's house. That onus of proof was on the plaintiff and the Courts below have ignored this aspect of the matter and that justified interference by this Court in second appeal though the finding is one of fact. In fact, it has resulted in gross injustice in the circumstance of the case. The finding is recorded by both the Courts below in respect of the open Fali in front of the defendant's house cannot be sustained.
(6) That however does not mean that the defendant can make use of that has to keep open space in any manner he likes. He has to keep it open for reasonable enjoyment which the plaintiff and persons living in his house together with cattle etc., have a right to for passing through that open space. He cannot put materials or tether cattle as to cause obstruction to the plaintiff's passage. The direction to remove there wooden hoop from near the southern Koudya shall, therefore, stand assuage of the people living in the house of the plaintiff. The defendant shall also be restrained from doing any act that would interfere with the plaintiff's reasonable enjoyment on account of his right of passage through that portion in front of the defendant's house.
(7) The decree shall stand modified as stated hereabove. The order directing the defendant to remove the wooden hoop from near the southern Kodya shall further be restrained from doing any act that would interfere with the plaintiff's reasonable enjoyment as a passage for the inmates etc., living in the house of the plaintiff on the northern side. That open site shall, however, remain open. Parties shall bear their own costs throughout.
(8) Order accordingly.