AKBAR SHARIEFF Vs. NAAZ PARVEEN AND ORS.

JUDGEMENT

(1.) HEARD the learned counsel for the appellant and heard the learned counsel for the respondent.

(2.) THE appellant was defendant No. 1 before the trial court. It was the plaintiffs case that the mother of the plaintiff one Smt Zubeda Khatoon wife of T.M. Wazie Ahmed was allotted an item of property described in the suit schedule from amongst 7 properties as between her and her sisters. The entire suit properties said to have been allotted to the mother of the plaintiff consisted of 8 business premises in the first floor and common areas in undivided shares. This was effected by a Deed of Settlement dated 29.12.1992, which was a registered document. It was the plaintiffs case that under the said document, there was a specific recital that the shops have common walls and the verandah which each gets is a common area and the stair case leading to the first floor in the annexed plan to the settlement was common to all the occupants of the building and further that the beneficiary would be entitled to the 'C' schedule property and the other daughters of plaintiff s aunt would be enjoying the property along with all others and therefore, the undivided share, right and interest of the common areas was granted. The plaintiff further contended that what was described in suit schedule 'A' were common areas.

(3.) THE controversy which is the subject matter of the suit was that defendant No. 2 who was also one of the sharers of the suit property had sold the property falling to her share in the ground floor of the suit property to defendant No. 1. Defendant No. 1, on such purchase of the property, sought to carry out certain alterations in the ground floor portion of the suit property, thereby, endangering the safety and stability of the shop premises bearing No. 21 in the first floor and it was the case of the plaintiff that by virtue of defendant No. 1 being in possession of shop No. 20 in the ground floor and the purported alterations carried out, would seriously affect the safety of shop No. 21 on the first floor and therefore, had rushed to the civil court and filed a suit for permanent injunction restraining defendant No. 1 from carrying out any such alterations including common wall or supporting the wall of the shop at the first floor, from carrying out such alterations in the common wall or the ceiling between the first floor and the second floor ceiling which formed a common wall for ground floor and the first floor and thereby causing injury and damage to the plaintiffs property. The suit was not contested by defendant No. 1. Therefore, the court below had framed the following points for consideration: