MESSERS JAGJIVANDAS HIRACHAND Vs. MADANLAL SHIVPRASAD SRIVATSAV

JUDGEMENT

(1.) BY way of this appeal, the original plaintiff has challenged decree and order of the City Civil Court dated 27th June 1988 passed in Civil Suit No. 1855 of 1985, whereby the suit was partially decreed.

(2.) THE facts in brief, as emerging from record, are as under:

(3.) IT is the case of the appellant - original plaintiff that it is the tenant of the suit property; that original owner of the said property has expired and his son has taken a rent note from the plaintiff on 6th December 1964, in which it is mentioned that the actual possession of the whole premises is with the plaintiff. It is averred in the plaint that defendant is tenant of one room on the northern side on first floor of the suit property; that there is a gallery on the first floor and the staircase situated on the northern side of the property opens in the gallery of first floor and the plaintiff and defendant both have common right to use the said staircase. It is also averred in the plaint that there is latrine on southern side of the gallery and plaintiff and defendant both are entitled to use the same and that the gallery is in actual possession of the plaintiff. It is also the case of the appellant that by taking advantage of the 'bandh', due to which the plaintiff had kept the shop closed for five days, the defendant had closed gallery by affixing wooden planks and taken illegal possession of the gallery and had begun to use whole gallery and obstructed the plaintiff from using the staircase and latrine. Therefore, aforesaid suit was filed with a prayer to restrain defendant from preventing plaintiff from using staircase, gallery or latrine and also with a prayer to direct the defendant to remove wooden planks fitted in the gallery and partitions and loft constructed in the gallery. Defendant has filed his written statement at Exh. 15 in the said suit and contended that the staircase opens within the portion which is let to the defendant and that the plaintiff has no legal right to use the said staircase. It is also averred that the defendant is in possession of the gallery and that the defendant also uses portion of the gallery as kitchen. It is also averred that plaintiff or its employees or customers never used any portion of the gallery. It is also contended that there is a separate passage for the plaintiff to go to its portion and the plaintiff has also got latrine and bathroom in their possession on the ground floor; that there is staircase leading from ground floor to first floor which is in possession of the plaintiff and the staircase which is in front of the room is never used by the plaintiff and the defendant alone was using the same. It is also contended that when defendant goes out, he locks one door and staircase which is near his room and sometimes it remains closed even for 15 days. It is contended that all rooms on the first floor were in possession of the defendant but after fire some of the rooms were taken away by the landlord. He also denied that there was any rent note dated 9th April 1965. He also denied that during 'bandh' he illegally entered the area of the plaintiff and the partition was there since many years. He accordingly denied all allegations made in the suit and prayed for dismissal of the suit.