CHANDERWATI Vs. LAKHMI CHAND DEAD

JUDGEMENT

(1.) This appeal under Clause X of the Letters Patent. against the judgment of Hon'ble Mr. Justice Yogeshwar Dayal has arisen on these facts and grounds.

(2.) Shri Manna Singh and Shri Lakhmi Chand became the tenants of the Custodian of Evacuee Property, Delhi some time in the year 1948-49 after they respectively occupied the evacuee houses built on plots now numbered as 11097 and 11096, Ward No. XIV, Doriwalan, Delhi. House No. 11097 falls on the back of house No. 11096 and as it is closed byhouses built on all other sides, an access to it lies only through Plot No. 11096. Shri Manna Singh and his family members etc., therefore, since the occupation of house No. 11097 in 1948-49 had been using a passage through plot No. 11096. The aforesaid two houses were acquired by the Central Government. In an open auction held by the Managing Officer of the Ministry of Rehabilitation, New Delhi on June 4, 1960 Shri Manna Singh and Shri Lakhmi Chand jointly made the highest bid of Rs. 32,100 and became the purchasers of the aforesaid two houses Nos. 11096 and 11097 including the lease hold rights in the plots. A sale certificate dated August 11, 1960 was issued in the joint names of Shri Manna Singh and Shri Lakhmi Chand with respect to the aforesaid house Nos. 11096 and 11097. The total area of the land underneath the aforesaid houses in mentioned therein as 338 square yards on lease hold basis with the Delhi Development Authority/Delhi Improvement Trust. The shares of Shri Manna Singh and Shri Lakhmi Chand are mentioned as "half share each". Shri Manna Singh and Shri Lakhmi Chand consequently became the lessees in respect of the site underneath the said houses in equal shares under the Delhi Development Authority. The mutation No. 522 of 1963 was sanctioned in the joint names of Shri Manna Singh and Shri Lakhmi Chand in equal shares for the plot measuring 338 square yards. There iso dispute to these facts.

(3.) The successors of Shri Manna Singh who died in July 1965, brought a suit on October 27, 1966 for a perpetual and mandatory injunction' It is alleged by the plaintiffs in para 3 of the plaint that on the receipt of the sale certificate, an oral partition between the parties took place and it was mutually agreed that in consideration of his owning and occupying the front portion namely, house No. 11096. Shri Lakhmi Chand, the defendant shall concede and give up all claims to the passage 7'-6" wide and 44' long in favour of Shri Manna Singh who shall be the exclusive owner and possessor of the same and that the defendant shall have absolutely no right to or claim upon the said piece of land. It is further alleged that to perpetuate the division and to demarcate the portions it was further decided that partition walls in the shape of English letter 'L' 7" wide and 44' long on the length side i.e. from North to South extending from the left piller of the entrance gate and 7" wide into 25'-2" long on the width side i.e. from West to East shall be built on the respective lands of the parties and the expenses shal] be borne equally. It was further agreed that each party shall be the exclusive owner of the portions so divided and shall be in their right to dispose off the same. These terms were incorporated "in a partition deed dated September 8, 1960," avers the plaint, and since then the plaintiffs are in exclusive possession and use of their portion including the passage. The plaintiffs claim that to perpetuate the partition and to demarcate the respective portions, the partition walls were built and the possession of the respective portions is being enjoyed by 250 the parties. The cause of action for the suit is alleged to be the reconstruction of 2 1/2 storeyed building by the defendant in the year 1964 in the absence of Shri Manna Singh and the opening of one door and three windows with sunshades on the ground floor abutting on the passage and three window's with sun-shades on the first floor overlooking the passage. The plaintiffs allege that when they came to know of the encroachment upon their land and interference with their possession and enjoyment of the property, they made strong protests to the defendant and asked him to remove and close the said windows and door and to demolish the sun-shades and also to demolish the partition wall and restore it to its original height of 4' but the defendant refused to listen. The relief claimed in the suit is for the grant of injunction restraining the defendant from interfering with the plaintiffs possession, user and enjoyment of the passage 7'-6" and 47' long and a mandatory injunction directing the defendant to demolish, to remove and close three windows and one door on the ground floor and three windows and sun-shades on the first floor abutting and emerging on the said passage belonging to the plaintiffs and also to pull down and to demolish so much portion of the partition wall 7" wide and 47' long on the land of the plaintiffs as was tempered with from a height of 9' to its original height of 4' long and to restore a status quo ante.