LAKSHMI CHAND Vs. IQBAL SINGH

JUDGEMENT

(1.) Parties jointly bought two houes. One was in front and the other on the back. Entrance to the back was from the front house. For partition they wrote a deed marked 'A'. A passage for entry to back house was reserved to owner of back house, plaintiff's father. Defendant owned front house who built upper floor and made some construction on partition wall & opened a door & windows towards passage. Plaintiffs claiming that passage was their exclusive property and defendant had no right to raise height of partition wall and open door and windows sued him for injunction. Trial Court framed issues, whether plaintiffs were owners of partition wall, whether they exclusively owned passage and whether they were etitled to injunction. Partition deed 'A' was held inadmissible being unnegistererd. Trial Court partly decreed suit while it was decreed in full in 1st appeal. Defendant filed 2nd appeal. After narrating above facts, para 7 onwards judgment is ;-

(2.) The appellants challenged the findings of the courts below on all the issues. Mr. Sehgal, learned counsel for the appellant submitted that (1) there was no legal evidence to prove the exclusive ownership of the passage in dispute as being of the plaintiffs-respondents : (2) that the finding that the house was not constructed till April 1964 is erroneous ; and (3) that the finding that the windows in dispute were constructed on the plaintiffs wall was also erroneous as being based on no evidence.

(3.) Various submissions were made by the learned counsel to substantiate his last two submissions. I am afraid the finding as to what time the house was constructed and when the windows were opened and whether they were built in the absence of the plaintiffs are all questions of fact. Again, the finding whether the windows were constructed on the wall built by the plaintiffs on the passage in dispute is a pure question of fact. There is enough evidence to show that the windows were built by the defendant on one of the twparallel walls built by the plaintiffs and it is not a case where the finding can be said to be vitiated being based on no evidence. However, the main submission of Mr. Sehgal is that the finding that the plaintiffs were the exclusive owner of the passage is based on no legal evidence. To substantiate his submission the learned counsel for the appellant submitted that both the courts below have held that the partition deed marked 'A' not being admissible no oral evidence could be led to prove the partition of any part of the property dealt with by the said deed It was submitted that the alleged passage is allotted to the plaintiffs' predecessor-in-interest by virtue of the partition deed marked 'A' by clause (1) of the partition deed and therefore, in view of sections 91 and 92 of the Evidence Act, no oral evidence could at all be led to prove that the passage in dispute fell to the share of the plaintiffs' predecessor-in-interest, and if it be held that the passage still remains joint property the plaintiffs would not be entitled to the relief of either perpetual injunction or the mandatory injunction prayed for by them.