CHHOGALAL Vs. NANDKISHORE

JUDGEMENT

(1.) Two adjoining houses situated at Ashoknagar were originally joint Hindu Family property. On a partition between Hukumchand and Nanoulal they were separated into two houses or two portions. The northern side was given to Nannulal and the southern to Hukumchand. A staircase in between the two portions was kept as common property of both. On 1-2-49 Nannulal sold his portion to Champalal and in that sate the staircase was also included, Thereupon Hukumchand brought a suit which was decided in his favour. The plaint dated 8-8-50 is Ex.P. 3 and the judgment of the High Court of Madhya Bharat in that case is dated 28-4-54 and marked Ext-Dl (reported in 1955 M P. L. J. 288); In that suit it was held that the staircase belonged to both the brothers (Nannulal and Hukumchand) and could not be sold by Nannulal to Champalal without Hukumchahd's consent. A permanent injunction was also issued against Champalal restraining him from using that staircase. During the pendency of that suit, Champalal sold the property which he had purchased to Nandkishore by a registered sale deed on 30-1-52.

(2.) The dispute in the present suit is that Chhogalal s/o Hukumchahd started constructing a wall on the ground floor in a tin shed 11'-4" long and 3'-3" broad, in front of the staircase. Moreover, on the first floor the defendant Chhogalal closed a door in the plain-tiffs wall which opened in the staircase, by putting a tin sheet in front of it. Thirdly. Chhogalal constructed a wall on the first floor in front of the staircase. Fourthly, the defendant constructed another wall on the back portion near the other staircase. The suit was resisted on the ground that that ever the defendant did was within his rights'. The learned trial Judge held that the disputed place of land on the ground floor, in front of the staircase, belonged to the plaintiff to the extent of 12 in length and 1' 2" in breath but not the rest of that land(2'-l'' in breadth) the first appellate Court' upheld that finding.

(3.) Shri Inamdar contends that by virtue of the judgment of the Madhya Bharat High Court in the previous suit (Ex Dl) it must be held that the staircase and both the walls in which the steps are fixed as also all the steps in front of it on the ground floor belongs exclusively to the defendant. Learned counsel strenuously relies on that judgment and urges that it is binding on this Court. It is also argued that if there is any joint right in the disputed land on the ground floor, that right is common between Nannulal and Chhogalal but the plaintiff has no rights. I do not s's any substance, in this contention. Whether in the previous suit an injunction was rightly or wrongly issued against Champlal cannot be considered by me. Nor does it really cal for any consideration. All that was declared in the suit was that Nannulal could not sell the common staircace without the content of Hukumchand. In the present case the staircase is not in dispute and in the previous suit the land in front of the staircase, on the ground floor, was not in dispute.