KANYALAL Vs. LOONKARAN

JUDGEMENT

(1.) THIS is defendants second appeal against a decree passed by the District Judge, durg at Rajnandgaon, on 9th January 1954 in Civil Appeal No. 25-A of 1953.

(2.) THE plaintiffs-respondents wanted a declaration that they were the owners of the wall AB between the houses of the appellants and the respondents, as shown in the plaint map, and that they had a right to stop the defendants-appellants from interfering with their right over the wall AB and that they had also a right to remove or destroy anything which might rest on the said wall AB. This declaration has been made by the lower appellate Court, excepting in respect of the wall standing on the portion AK and the rafters and other things resting on that wall in that portion.

(3.) THE plaintiffs-respondents have a house facing east in the Sadar Bazar of rajnandgaon town. To the south of that house was the house of one Balmukund poddar, who sold that house to the appellants on 9-10-1926 under the sale-deed ex. P-3. Rekhchand and Agarchand were brothers. Agarchand is dead, and is represented by his sons, who are appellants in this Court. In 1932 there was a partition between Rekhchand and Agarchand, and the northern portion of that house of the width of about 17 feet, adjacent to the plaintiffs house fell to the share of Rekhchand. The wall of the total length of about 100 feet, shown by the letters AB in the plaint map, runs east-west between the plaintiffs' house and the house which fell to rekhchand's share. In 1932, soon after the partition, Rekhchand started construction towards the west portion of his premises and built over the wall to the extent of the portion AC. It was at that time that a dispute as referred to arose between Rekhchand and the plaintiffs, and the dispute was referred to two arbitrators, who gave their award on 3-5-1932. In 1937, fresh dispute followed and then Rekhchand executed the letter (Ex. P-1 ). On 9th November 1943 Rekhchand transferred his house to his brother Agarchand (appellant No. 1 ). There was trouble in July 1948 when the plaintiffs started rebuilding their western portion of the wall AB to the extent of 19 feet in length. In building the wall they cut the rafters, tin-sheets and other things, which were resting on the wall Agarchand (appellant No. 1) reported the matter to the police and proceedings under Sections 145 and 147 of the Code of Criminal Procedure were started against the plaintiffs. The plaintiffs were directed by the Additional district Magistrate, Rajnandgaon, not to interfere with the appellant Agarchand's right of placing rafters and beams over the wall in dispute. The plaintiffs, then, filed this suit for a declaration that they had been the owners of the disputed wall AB and that they had a right to remove or destroy anything which might rest on the wall AB. They also claimed a permanent injunction restraining the defendants from interfering with the plaintiffs' rights over the wall in question and from putting any patias, rafters or wood or masonry work on the said wall AB for the support of their own building.