SUMANLAL BHAGWANDAS KAPADIA Vs. NAGINLAL BHAGWANDAS KAPADIA

JUDGEMENT

(1.) This second appeal arises out of a suit instituted by the Plaintiff-appellant in the Court of the Civil Judge (Junior Division) Rajpipla for a permanent injunction restraining the defendant-respondent from putting up any construction in the southern wall of his house inter alia alleging that the said wall is of his exclusive ownership and that the defendant has no right to make use thereof in any manner.

(2.) The defendant-respondent resisted the suit inter alia contending that the suit wall is not of the exclusive ownership of the plaintiff but that it was their joint wall and was to be treated as such. He has therefore every right to make reasonable use thereof and that it would not cause any damage to that wall if the cement concrete boxing up to a small depth were constructed in this wall.

(3.) On the pleadings of the parties the issues were raised by the trial Court and in its view the plaintiff failed to prove that the southern wall of his house was of his exclusive ownership and that it is of the joint ownership of the parties. It also held that the defendant is entitled to make reasonable use thereof for the purpose of inserting a bar of 4 inches within a length of 15-16 feet for putting up a slab and thus the plaintiff is not entitled to any injunction sought for in the suit and in the result it dismissed the plaintiffs suit with costs. Against that decision passed on 30th September 1958 by Mr. M. B. Pancholy Civil Judge (Junior Division) Rajpipla the plaintiff preferred Regular Civil Appeal No. 81 of 1958 in the Court of the District Judge at Broach. The same issues were raised before him and on a consideration of the evidence on record he agreed with the finding of the trial Court that the suit wall was of joint ownership of the parties and it was to be treated as such and in the result he dismissed the appeal with costs. Feeling dissatisfied with that decision passed on 18th April 1959 by Mr. Y. D. Desai District Judge Broach the plaintiff has come in appeal.