MEHAR CHAND Vs. JAGDISH CHAND GUPTA

JUDGEMENT

(1.) The facts, in this appeal, against an appellate judgment of the learned District Judge, Simla, briefly, are: The property, old No. 153, new numbers Shops Nos. 57 and 58, a three storeyed building, situated in Lower Bazar, Simla, belonged to one Kali Das Chakravarty. He sold it to Rupa and Nihala on the basis of a registered sale-deed, Ex. Public witness 1/1, dated 28-8-1881. The successors-in-interest of Rupa and Nihala had partitioned the property. Shop No. 57 fell to the share of Devi Chand (P. W. 1), grandson of Nihala, and-Shop. No. 58 fell to the share of Devki Nandan, plaintiff No. 8. Devi Ghand (P. W. 1) sold shop No. 57 to plaintiffs Nos. 1 and 2 on the basis of the sale-deed Ex. P. W. 2/1, dated 15-10-1962. On the northern side of Shops Nos. 57 and 58 is situated a building known as Garib Manzil. This building belonged to a Muslim, who had migrated to Pakistan. Garib Manzil and vested in the custodian. The building' was auctioned and was purchased by the defendant. In between Shops Nos. 57 and 58 and Garib Manzil, there is a drain and dry area. The plaintiffs had filed a suit, out of which the present appeal has arisen, for the issue of an injunction. The suit was originally filed by plaintiffs Nos. 1 and 2. On the application of plaintiff No. 3, he was added as a co-plaintiff by the order of the trial Court dated 28-8-1968. By 'the same order, the trial Court allowed certain amendments in the plaint. The allegations in the amended plaint were that the proprietor of Garib Manzil, the defendant, had started construction to his own property and had carried out extensive repairs to" the ground floor thereof in May, 1964, that while effecting repairs, the defendant had encroached upon the property of the plaintiffs by putting up. a slab at ground level (?) of his own building, covering not only the dry area and the drain which belonged to the plaintiff, but also the roofs of'the latrines and a part of the roof of the godown of the plaintiffs, that the roof of the plaintiffs' property under the slab was half century old and could not possibly bear the weight of the new construction, that the defendant had illegally constructed a room over the slab and the water from the room fell on the Dhajji wall of the property of the plaintiffs, thereby causing damage and that the above actions of the defendant were illegal. The plaintiffs prayed for a decree for mandatory injunction, ordering the defendant to demolish the construction made by him over the land and building of the plaintiffs. They also prayed for a decree for the issue of a permanent (injunction against?) raising any kind of super structure or over-hanging super structure on any part of Shops Nos. 57 and 58.

(2.) The defendant contested the suit. He denied that the drain and the dry area between Garib Manzil and the two shops belonged to the plaintiffs. The' plea of the defendant was that the alley and the dry area were joint property of the owners of Garib Manzil and the owners of Shop No. 57 and that the upper portion thereof had been in exclusive possession and occupation of the owners of Garib Manzil since the year 1922. The defendant denied that the slab and the room on the slab had been constructed in 1964. He pleaded that the slab was in existence since 1922 and was an approach-passage to Garib Manzil. The defendant, further, pleaded that in 1964 he had carried out only some repairs to the slab and had replaced the Dhajji walls with thick pucca brick walls and the worn out wooden pillars' and wooden flooring by concrete pillars, with a view to protect the property and increase its life.

(3.) The trial Court held that the drain and the dry area was not the exclusive property of the plaintiffs but was the joint property of the parties. The trial Court, further, held that the slab, in dispute, had been constructed before 1922 and that the owners of Garib Manzil had, after the expiry of 12 years, acquired absolute right, by adverse possession, over the slab, and over the column of the air, and that those owners were entitled to make any -construction on the slab. An objection was taken, before the trial Court, that as the defendant, in his written statement, had not pleaded acquisition of absolute right by adverse possession, and no specific issue was framed, the defendant could not raise the question of adverse possession at the time of arguments. The trial Court rejected this objection, holding that the defendant had pleaded in the written statement that he was in exclusive possession of the space above the drain and dry area and that his predecessor-in-interest had constructed a slab in 1922, overhanging the space over the dry area and the godown of the plaintiffs and that in view of the aforesaid allegations in the written statement, the plaintiffs were not taken by surprise and no prejudice had been caused to them by the plea of adverse possession.