NARAYAN MUGATRAM BHATT Vs. JAYNARAN MUGATRAM BHATT

JUDGEMENT

(1.) TWO brothers are at war. The dispute is fairly narrow and when it comes to grant of relief, it is narrower as it turned out before the learned trial court. The tragic -comic aspect of the case is, parties are of fairly old age while the elder brother is aged about 90, the younger brother is about 80 years old and yet the appeals were contested with much vehemence.

(2.) THESE two appeals arise from two cross suits filed by the parties. Jaynarayan, elder brother has filed Civil Suit No.1998 of 1989 from which Civil Appeal No.3851 of 1996 arises and younger brother Nayaran Bhatt had filed Civil Suit No.5557 of 1989 from which Civil Appeal No.3867 of 1996 arises. The learned trail court has referred elder brother as a plaintiff in the discussion and younger brother as a defendant. Similarly, brothers are referred to as plaintiff and defendant herein.

(3.) THE facts are thus; The suit plot admeasuring 258 sq. yards of land was purchased by registered sale deed on 1.7.1957. In the same year, the municipality has sanctioned the plan for construction. A house was constructed on the said plot. On 16.7.1967, parties had arrived at an agreement and the property was divided by way of partition deed. This partition deed was registered on 30.3.1968. It provided that property admeasuring 26.6 ft. x 15 ft. would come to the plaintiff's share and the property admeasuring 26.6 ft. x 14.6 ft. would come to the defendant's share. The open space / chawk on east -west was agreed to be kept open for joint user. Around 1976 -77, the defendant had said to have carried out some construction of a first floor etc. which has a projection over an open chawk. The defendant has also said to have constructed one room over the Otla in the open chawk. It is the say of the plaintiff that defendant, without knowledge and consent of the plaintiff, has carried out the construction and has converted part of the open space / chawk for private use which was agreed between the parties to keep open for the joint use. Then, an attempt to construct a wall in open chawk by the defendant had led the plaintiff to file Civil Suit No.1998 of 1989. The plaintiff's prayer in the words of learned trial court is, ".. prayed for permanent injunction to restrain the defendant from constructing any wall in the joint property or making any obstructions in the plaintiff's access to his property and preventing the plaintiff from enjoying his property. He also prayed for injunction to restrain the defendant from preventing the plaintiff from using the room which was constructed on the Otla which was of joint ownership. He prayed for a declaration that the constructions made by the defendant in the joint property were illegal and the plaintiff was entitled to joint user of the property. (Para.8)" Pending the suit, the plaintiff had amended the plaint and had, inter -alia, prayed for removal of the lock on the plaintiff's kitchen door which opens towards the chawk. Back side of the plaintiff's kitchen door is on open chawk and the defendant had said to have bolted it and hence, the plaintiff had claimed relief for the same.