KAPOOR CHAND Vs. KAILASH CHAND

JUDGEMENT

(1.) THIS appeal has arisen in a suit for demolition and injunction. The plaintiff alleged that he was the owner of a pucca Haveli, which was also known as Bail-khana. The defendants were the owners of a house situate towards the east of the ahata but they did not own the western wall of their house. The wall between their house and the ahata of Musaddi Lal was owned by the latter, Musaddi Lal sold the ahata to Chater Sen on 31st August, 1945, where upon two suits Nos. 420 and 421 of 1946 were filed for pre- emption by Benarsi Das, who was the father of the plaintiff and by the defendant Kapoor Chand. These suits were decided in terms of a compromise as a result of which Benarsi Das became the owner of the two north faced kot has and the vacant piece of land lying to their west and Kapoor Chand became the owner of a Dukariya and the Sahan lying in front there of as well as the northern exit. A dispute subsequently arose between Benarsi Das and Kapoor Chand and the defendants in respect of the joint Sahan and the exit as well as the eastern wall of the ahata and two suits Nos. 284 and 421 of 1948 were filed. These suits were also decided in terms of a com promise between the parties. The joint Sahan of the ahata was partitioned and the southern portion as well as a part of the western portion shown as KLAEFBCD in the site plan were allotted to Benarsi Das where as the portion shown by letters KPEF ex cluding the southern abchak as well as the land MNUC were allotted to the defendants. The remaining portion of the Sahan shown by letters OPEBMNG and the exit to dahleez and chabutra QOGTSR remained joint. It was also alleged that the Haveli of the de fendant-appellant was separate from the ahata of Musaddi Lal and the rain water of the Haveli flowed inside that house and not to wards the ahata of MusaddiLal. The defendanti had, therefore, no right to flow the water in the Sahan or dahleez of Musaddi Lal' ahata. They, however, began to carry out small alterations in their Haveli to the east of Musaddi Lal's ahata in June 1963 and a water pipe was fixed in the Haveli after taking over upon the chabutra. The defendents also put the lintel roof of their Haveli on the joint eastern wall. The plain tiff protested against the aforesaid actions, of the defendants and served a notice dated 10th July, 1963, on them but the defendants paid no heed to the same, hence the plaintiff filed the suit for injunction.

(2.) THE suit was contested, inter alia, on the grounds that the entire wall SR was part of the Haveli belonging to the defen dants and that it did not form part of the ahata of Musaddi Lal. It was also alleged that the decree passed in civil suit No. 284 of 1948 was not binding upon defendant No. 2, who was not a party to the same. It was also alleged that there existed a latrine, near the northern portion of the said wall and water from the latrine always flowed through the disputed drain in the joint Sahan. The southern portion of the wall was in a demolished condition at the time of compro mise and as such the same was built by Benarsi Das. However, as the wall was in a dilapidated condition the defendants feel ing unsafe raised the height of the wall. The disputed latrine was constructed by the de fendants at its original place and no damage was caused by the defendants by placing lintel upon the disputed wall. The projec tion upon the wall MN was raised with a view to protect the door and it did not amount to an encroachment upon the joint Sahan. The defendants had fixed the water pipe in their northern wall and the pipe line passed through the chabutra which belonged to them. Even if any portion of the pipe line passed through the joint chabutra the defendants had right to take pipe line as co-sharer. The wall RS and TS belonged ex clusively to them and as such they had a right to open a window and use the same in any manner they liked. The water from the eastern portion of the defendant's house flowed through a nali in the joint Sahan and the defendants had a right to do so.

(3.) IT was urged on behalf of the de fendants appellants that both the courts below have misconstrued the terms of Ex. 16, being the compromise decree passed in Suit No. 421 of 1948 referred to above whereby the defendants had acquired a right to discharge water in pucca and covered drain. There is force in this submission. The compromise decree Ex. 16 gave a right to Kapoor Chand to discharge water through abchak and the drain OQ from those por tions which were allotted to him in terms thereof. Clause six of the compromise dec ree provided that if any party to that suit desired to discharge water through the joint Sahan he would do so by constructing pucca closed drains therein. The defendants had alleged that they were discharging water through pucca covered drains through the joint Sahan. This being in consonance with the terms of the decree was not liable to be objected to. The parties, by agreeing to such a term, had considered it to be a reason able user. As laid down by the Supreme Court in the case of Jahuri San v. D. P. Jhunjhunwala, AIR 1967 SC 109 co-owners are legally competent to come to any kind of arrangement for the enjoyment of their undivided property and are free to lay down any terms concerning the enjoyment of the property. The defendants were, therefore, not liable to be restrained from discharging their water through pucca .covered drains through the said joint Sahan.