JAI PRAKASH Vs. BISHAMBHAR DAS

JUDGEMENT

(1.) THIS is a plaintiffs' appeal arising out of a suit for demolition of constructions and for an injunction. The dispute in the case relates to an open piece of land surrounded on all sides by houses. The defendants have constructed a room on a portion of the said open piece of land and it is more or less in front of, but not attached to, their houses. It is marked AECD in the map which has been made part of the decree in the case. There are two outlets from the common court-yard, one to the north-west and the other to the south-east. On the south-east and south-west sides of this court-yard are the houses of the defendants. On the north-west and south are the houses of different people. The houses of the plaintiffs are to the north-east. The case for the plaintiffs was that the court-yard was generally a court-yard of the owners of the houses on all sides of it, and that the defendants had no right to make constructions in this open 'sehan' which was intended for various purposes, e. g. , for use on the occasion of marriages, on festive occasions and for use as a passage. The plaintiffs, therefore, sued for the demolition of the constructions and for an injunction restraining the defendants from making any further constructions in the joint 'sehan'. The plaintiffs based their claim on joint ownership and in the alternative on easements. They also stated that in 1892 on another portion of this joint 'sehan' the defendants had similarly constructed a house and on the suit of the predecessor-in-interest of the plaintiffs the house was demolished oh the ground that the entire land was joint 'sehan. ' > They pleaded that the finding in the previous suit operated as 'res judicata' for the purposes of the present suit. The defence was that the 'sehan' was not the joint property of all the owners, that there was no right of easement, that the previous suit did not relate to this land and did not operate as 'res judicata', that the land of the entire 'sehan' has been taken on lease by the defendants from the Zamindar, Sri Liaqat Ali Khan, by means of a document dated 12-10-1945 and that the land on which the construc-tion's in dispute had been made later in front of the defendants' house, belongs to them and since it did not lie in front of the plaintiffs' house, the plaintiffs had no cause of action for the suit. Certain other pleas were also raised with which we are not concerned in this appeal. The learned Munsif held that the plaintiffs failed to prove that they were joint owners of the land in suit, or that the land in suit was the joint 'sehan' of the parties or that the matter in dispute now was decided in the previous suit and was 'res judicata'. He further held that the plaintiffs had merely a right of passage, but the right of passage had not been obstructed by the construction in dispute. He, therefore, decreed the suit of the plaintiffs in so far as he issued an injunction restraining the defendants from making any constructions to the north of the constructions already made by them, or to make any constructions so as to interfere with the plaintiffs' right of way to the north or south. But he dismissed the suit for demolition of the constructions already made. Against this decree the plaintiffs appealed to the lower appellate Court and the defendants filed a cross-objection.

(2.) THE lower appellate Court dismissed both the appeal and the cross-objection and affirmed the decree of the trial Court. The plaintiffs have now come up in appeal to this Court and the defendants have filed a cross-objection.

(3.) TWO main points have been urged before me by the learned counsel for the appellants. He has urged that the question whether the parties were joint owners of the entire 'sehan' was decided in the previous suit in 1892 and was 'res judicata'. He further urged that even if that were not so, there was a presumption, in the circumstances of the case, that the land was the joint 'sehan' of the parties unless the contrary was established and that since neither of the Courts below raised this presumption, the view taken by them could not be sustained. In the cross-objection learned counsel for the respondents has urged that since the plaintiffs failed to prove that they were either the sole owners or the joint owners of the land to the north of the disputed constructions the Courts. below were not right in issuing an injunction restraining them from making any constructions in future. No objection has been raised before me on behalf of the defendants-respondents so far as the order restraining the defendants from making any constructions on the passage of the plaintiffs is concerned.