BHAGIRATH Vs. AMBARAM

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 25.11.2009, passed by the IInd Addl. Civil Judge Class II, Sardarpur, Distt. Dhar in Civil Suit No. 36A/09, whereby the suit filed by the plaintiffs was decreed, the respondents/defendants preferred an appeal No. 7A/11, which has been allowed vide judgment dt. 27.6.2013 by Addl. District Judge, Sardarpur. Now the plaintiffs have filed the present appeal against the reversal of the judgment and decree passed in his favour.

(2.) The plaintiff No. 1 and defendant No. 1 are real brothers. The plaintiff No. 2 is son of plaintiff No. 1 and the likewise the defendant No. 2 is a son of defendant No. 1 According to the plaintiffs a house situated in gram Vani Tehsil Sardapur was ancestral property and the portion mentioned in the map attached with the plaint came into the share of plaintiff No. 1 and the remaining portion came into the share of the defendant No. 2 by way of partition and both are residing separately in their house. The plaintiff has constructed the latrine bathroom over the first floor. There is sloping-roof over the house. According to the plaintiffs at the time of partition, the defendant No. 1 did agree to remove the said portion and thereafter, in 2008 also he promised to remove the said portion, but he did not. The plaintiffs served him a legal notice and thereafter filed a suit for permanent injunction and declaration against the defendants.

(3.) The defendants filed a written statement by submitting that his joint family property was partitioned between them 40-50 years back and plaintiff and defendants both are in possession of their respective share and there is no change in it. The plaintiffs has constructed latrine bathroom in his share and he never gave any assurance for removal of that sloping roof measuring 6 x 2 Sq. ft. and pleaded for dismissal of the plaint.