SHAH HIRALAL GORDHANDAS Vs. SHAH PARSHOTTAMDAS MULJIBHAI

JUDGEMENT

(1.) This Second Appeal has been filed by the original plaintiffs. The facts of the case shortly stated are as under.

(2.) There is a Chawk or Khadki land belonging to the plaintiffs and the defendants. The defendant No. 1 sometime prior to the institution of the suit by the plaintiffs applied to the Petlad Municipality for permission to construct a floor on a part of the said Khadki land at the first floor level leaving the ground floor portion open for passage by both the parties. The Municipality granted the Permission. On having come to know of the 8 of the permission to the defendant No. 1 the plaintiff lodged objections with the Municipality. The Municipality thereupon cancelled the permission by its order dated 28th June 1961. Yet the defendant No. 1 proceeded ahead with the construction. Therefore the plaintiffs filed the present suit on 6th July 1961 praying for a permanent injunction restraining the defendant No. 1 from constructing or putting up a structure at the first floor level on the said Khadki land.

(3.) In defence the defendant No. 1 admitted that the ground floor portion of the Khadki land was of joint ownership of the parties. The plaintiffs and the defendants have a common ancestor. It was further pleaded by him that the partition of the joint family properties had taken place some four or five generations back. At that time the ancestor of the defendant No. 1 had been allotted to his share amongst others the upper floor which had then been standing on a part of the Khadki land. He further averred that it had fallen down and that he was reconstructing it. He therefore contended that the plaintiffs had no right to obstruct. The defendants Nos. 2 and 3 have been supporting the defendant No. 1.