BALKRISHNA JAIN Vs. HARIVALLABH MAHESHWARI

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 19.01.2000 passed by ADJ, Karera, District-Shivpuri in civil suit No. 15-A/ 1992 whereby the suit filed by the appellant has been dismissed, the present appeal is filed.

(2.) Short facts of the case are that the appellant filed a suit against the respondent for declaration and permanent injunction alleging that the appellant is having a house situated at Chhota Bazar, District-Shivpuri. It was alleged that the house of the appellant is adjoining to the house of respondent and there is a wall between the house of appellant and respondent which is dividing the property of both the parties. It was alleged that the wall which is dividing both the property belongs to the appellant and respondent has no right, title or interest in the said wall. It was alleged that on 25.08.1981 respondent tried to raise construction over the said wall, hence, it was prayed that it be declared that the appellant is owner of the suit property which is wall and respondent be restrained not to take forcible possession of that property. The suit was contested by the respondent alleging that there are two walls, out of which one belongs to the appellant and other belong to the respondent. It was prayed that the suit be dismissed. On the basis of the pleadings of the parties, learned Court below framed the issues, recorded the evidence and dismissed the suit against which the present appeal has been filed.

(3.) Shri N.K. Jain, learned counsel for the appellant submits that the findings of the learned Court below is that the wall in question is a common wall, which is dividing the property of respondent and appellant. Hence, the suit ought to have been decreed. Reliance was placed on a decision of this Court in the case Ganesh Vs. Ramchandra, 1979 JabLJ 539 wherein this Court has held that whenever there is a common wall belonging to the parties as co-owners, it has to be seen that the entire wall retains it character as a common wall and should always be kept in such a condition that it may continue to remain joint and accordingly may be available for enjoyment by both the parties. Further reliance was placed in the matter of Malojirao Shitole Vs. Kanhaiyalal Hazarelal,1961 JabLJ 491 wherein this Court held that a party wall which stands between two houses must generally be presumed to be the common property of the owners of both the houses as tenants-in-common. It is only where a wall stands partly on one man's land and partly on the other's and the precise extent of land which originally belonged to each party can be ascertained, the presumption in favour of tenancy-in-common gives way to the inference that each owns that portion of the wall which stands upon his own land.