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3. Defendant in his written statement denied the case of the plaintiff including the claim of the plaintiff with regard to his ownership over the suit schedule property. The defendant further claimed that the said passage belongs to him. The obstruction as alleged by the plaintiff is also denied. The defendant further pleaded that if the plaintiff wants to open a window on the southern wall of his house, he can do so by demolishing the existing wall and constructing a new wall by leaving 3' of set-back. The defendant further specifically claimed that he purchased the house property measuring East to West 22.5', north to south 22.5' from one Sri.Ramappa through a registered sale deed dated 01.02.1985 and subsequently, purchased old country-tiled house with vacant site in terms of a registered sale deed dated 16.03.1989 from one Ramakrishna which measures east to west 20', north to south 22'. Thus, according to him these two houses are adjacent to each other bounded on the north by house of the plaintiff (formerly house of one Siddamma). It is the further case of the defendant that subsequent to the purchase, he had given up his right over the area measuring east to west 30' and north to south 6.5' in favour of the plaintiff abutting plaintiff's house on the northern side as per the decision of Panchayath people in June 1985 and in turn, the plaintiff had given up his right in respect of right to way through the house of Ramakrishna. It is further contended by the defendant that subsequently, plaintiff had constructed a new house with zinc sheet roof by utilizing 30' x 6.5' space and the said house has got gable roofing towards eastern side. Similarly the defendant has also demolished the old house and started construction of a new house by leaving 5.5' space towards northern side of his house. That when the construction had reached roof level, plaintiff had filed the present suit by making false allegations. Hence, sought for dismissal of the suit. The trial court based on the pleadings, framed the following issues for its consideration:

4. What Order or decree?
5. On re-appreciation of the material evidence, the first appellate court dismissed the appeal filed by the plaintiff. Aggrieved by the same, the plaintiff is before this Court by this regular second appeal. This Court, while admitting the aforesaid appeal, had formulated the following substantial questions of law by its order dated 16.09.2013:
" When the Courts below came to a conclusion that there is a passage in between the house of the plaintiff and the defendant and the plaintiff intended to put up a window on the southern wall of his house, whether the Courts below committed an illegality in rejecting the claim under misconception that suit is for injunction restraining defendant from opening a window in the wall of the house of the defendant?"

11. Thus, the aforesaid factual finding given by the trial court as well as the first appellate court leaves no room for any ambiguity with regard to the existence of the plaint schedule property being the passage. The plaintiff having given up his claim for the ownership of the passage and the defendant not claiming ownership over the said piece of land, as observed by the courts below, the said property belongs to none. In that view of the matter, the defendant may not be in any justification in obstructing or threatening to obstruct the plaintiff from opening the window on the southern wall of his property as pleaded by the plaintiff. The defendant, who constructed his residential house subsequently has already opened a window on the northern wall of his property facing the passage. The question, therefore, is only with regard to requirement of a permission to the plaintiff in he opening the window on the southern side of his house property.

12. The courts below have apparently misconceived this aspect of the matter in opining that the plaintiff is obstructing the defendant from opening the window on the northern side of his house which aspect is factually incorrect and does not emanate from the material on record. In that view of the matter, the present appeal requires to be allowed answering the substantial question of law in favour of the plaintiff, however, with an observation that while the plaintiff would be entitled to open the window on the southern wall of his house property, he shall ensure that such opening of the window would not invade into the privacy of the defendant. In other words, while opening of such window by the plaintiff on the southern wall of his house property, the plaintiff shall ensure that same shall not directly face the window of the defendant which is already opened by the defendant on the northern wall of his property. The plaintiff shall ensure the compliance of this observation while opening the window.