CHHOGALAL Vs. NANDKISHORE

JUDGEMENT

(1.) TWO adjoining houses situated at Ashoknagar were originally joint Hindu Family property. On a partition between Hukamchand and Nannulal 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 sale 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 22 -4 -54 and marked Ex. D -1 (reported in 1955 M.B.L.J. at page 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 Hukumchand's consent. A permanent injunction was also issued against Champalal restraining him from using that staircase. Dering 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 Hukumchand 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 plaintiff's 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, 'he 'defendant constructed another wall of the back portion near the other staircase. The suit was resisted on the ground 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 the extent of 12' in length and l' 2" in breadth but not the rest of that land (2' -1" in breadth). The first appellate Court upheld that finding.

(3.) THE learned appellate Court has relied on Hukumchand D.W. 1, Chhogalal D.W. 2. Nannulal D.W. 5, and also Halkuram D.W. 3 when he held that the space leading to the staircase was kept for common use of both the coparceners when there was a partition of the property. Since there is no doubt that the parties intended to sever, as soon as a partition was effected and the two portions were separated, anything which was kept common between the two brothers remained common property, yet its nature altered from joint tenancy to tenancy -in -common. Shri Inamdar has been unable to satisfy me or to cite any taw or decided case to show why Nannulal could not transfer his undivided interest in the common space in front of the staircase. Nannulal, when he sold his own portion to Champalal was entitled to transfer this open space as well whenever a joint owner sells his undivided interest, the vendee becomes vested with that interest and gets the right of partition. This position of the law is obvious enough and this unnecessary to support it by authorities. It is equally settled law that the defendant could not make any construction on the common land to the detriment of the other party's interest.