BAJRANGLAL Vs. MANGIBAI

JUDGEMENT

(1.) ON perusing the Judgment of the Courts below it is manifest that the original house was divided into two equal parts. Therefore, when any of the parties alleged an encroachment it was for that party to show that the encroachment has been made on a particular portion of the suit land. No dimensions has been given in the plaint by showing the location of the other houses around the suit house. In para 6 of the plaint it was clearly stated that the house was divided into two houses and in the chowk behind the constructed portion the possession of both the parties was common. The grievance of the plaintiff was that the open chowk is being divided in two parts but while doing so about 2 Ft or 3 Ft of land of the plaintiff is being encroached. However, the decree has been passed only on this ground that according to the sale deed Ex. P -1 the width of the four chasmas was 32 Ft. and, therefore, the portion of each of the parties in the two chasmas could have been, 16 Ft. whereas the appellant is constructing the wall keeping 17 1/2 Ft. in his possession. Therefore, there is encroachment of 1/12 Ft further more the latrine was for the common use. However, it has come in the evidence that during the trial the latrine was not in existence. Therefore, a question of passing an injunction for use of a place which is not in existence was nothing but an empty formality. When the relations between the parties are strained because of dispute of some portion of land, then the Court while granting the equitable relief of injunction should first see whether the ends of justice would be served in allowing the injunction or not allowing the injunction.

(2.) IN the instant case there is a concurrent finding of the Courts below that although the plaintiff was able to show the width of the house, but the defendant has not been able to produce the original document to show the portion purchased by him. However, this cannot be disputed that the house is divided into two portions of 2 chasmas, the total house being of 4 chasmas, two chasmas being in possession of the plaintiff and the other two in the possession of the defendant.