MALOJIRAO SHITOLE Vs. KANHAIYALAL HAZARELAL

JUDGEMENT

(1.) IN this second appeal the dispute is about a wall between the houses of the plaintiff and the defendant firm. The disputed wall "measuring 370ft -6 inches in length," is denoted by the letters K. Kha in the paint sketch. To the east of this wall is the house of the defendant firm which was sold to it by the plaintiff on June 28, 1920. To the west of the disputed wall is the plaintiff's house.

(2.) THE plaintiff claimed the disputed wall as his property. His grievance in the plaint was that the defendant made certain encroachments on it. He prayed for a declaration of title to and possession of the wall as also for the removal of all encroachments made by the defendant and for an injunction to restrain it from making any further encroachment. In the alternative he claimed a declaration that the wall was a party -wall and that the defendant had no right to encroach upon it while the plaintiff had a right to use it to the extent of half the width.

(3.) THE plaintiff examined several witnesses, namely Ram Prasad, Hoharilal, Gopa, Jiya Narain, Ram Karan and Saligram, who stated that in their opinion the disputed wall belonged to the plaintiff because they had been seeing the wall for a number of years and the defendant had made new constructions when it encroached upon it. Having gone through their statements I find that no useful assistance can be bad from their evidence. Their testimony is vague and indefinite, they have no solid basis of their opinion as regards the ownership of the wall. Anant Abhyankar was produced by the plaintiff to say that the defendant made certain constructions after obtaining permission from the Municipality, His evidence too is of no value on the question of ownership of the disputed wall. Plaintiff examined himself and stated that the wall belonged to him and whenever be got information that the defendant was encroaching upon it he objected. From his statement also it cannot be ascertained when this wall was constructed and by whom.