Shiveji Prasad and Another vs Motilal and Another

C.M. Lodha, J.—This is a defendants'' second appeal arising out of a suit for injunction.

At the time of admission of the appeal learned Counsel for the appellant abandoned all the grounds taken in the memo of appeal except that the lower court should have clarified that the defendants would not be restrained from making an opening in the latrine of their house so that their sweeper may come by the lane in question to remove the night soil. I have, therefore, heard learned Counsel for the parties on this point. With their help I have examined the site plan also & find that there is a latrine is the defendants'' house contiguous to the lane in question .The defendants'' right to use the lane in question as a passage for their sweeper has been recognised by the court below. In this view of the matter the defendants have undoubtedly a right to make an opening in their latrine which is said to be an ordinary type of latrine from which the sweeper may remove the night soil and clean the latrine. Even the learned Counsel for the respondents was not able to oppose this prayer of the learned Counsel for the appellants which appears to be very just and reasonable.

Accordingly, I partly allow this appeal, and modify the judgment and decree by the Additional District Judge, Gangapur to this extent that the defendants shall have a right to make an opening in their existing latrine on the lane so that their sweeper may come through the lane and remove the night soil from the latrine The parties are left to bear their own cost.