DEO KUMAR Vs. KAILASH CHAND

JUDGEMENT

(1.) THIS appeal has been preferred by the plaintiff/appellant against the dismissal of his suit for declaration and injunction by the Courts below in a concurrent manner.

(2.) PLAINTIFFS are real brothers and the defendants are also real brothers. Both the parties own adjacent houses. There is a single wall supporting the house which has been claimed by the plaintiff as a common one belonging to the parties to the suit. It has been pleaded that the disputed wall was in dilapidated condition, therefore, the same was reconstructed in the year 1955 by the ancestors of both the parties. It has been further pleaded that for more than last 20 years both the parties were keeping their possession over it as co-owners and it was being treated as a common wall without any hindrance or obstruction. On 12-8-1975, the defendants tried to forcibly occupy the entire disputed wall. A complaint was lodged on 13-8-1975 with the Police Kotwali, Sehore and S. D. M. Sehore. No action was taken on it, therefore, the plaintiffs issued a notice with a request to the defendants for not causing obstruction. The defendants refuted the allegations and asserted their exclusive ownership which forced the plaintiffs to institute a suit in November, 1975 with a prayer that the plaintiffs and defendants be declared co-owners of the disputed wall and the same be declared as a common wall belonging to them. A decree for perpetual injunction was also sought restraining thereby the defendants from making any construction or change in the disputed wall without consent of the plaintiffs. Additionally, a mandatory injunction was sought for removal of the wooden log kept by the plaintiffs on the entire width of the disputed wall.

(3.) DEFENDANTS submitted a joint written statement denying thereby the claim of the plaintiffs. They inter alia contended that the disputed wall is exclusively owned and possessed by them from the time of their ancestors. It was denied that the wall was constructed jointly by the ancestors of the parties. It has been specifically averred in the written statement that the sanctioned map for construction of the defendants house was obtained in March, 1918. The disputed wall has been clearly shown as a wall of their house in the sanctioned plan. Accordingly, the suit is liable to be dismissed.