LAXMICHAND SHITABRAI Vs. NEMICHAND HUKUMCHAND

JUDGEMENT

(1.) THIS is an appeal by the Plaintiff from the concurrent decisions of the lower Courts dismissing his suit. The question is whether, in a case, where the subject -matter of the dispute is altogether unascertainable, a suit may at all be entertained.

(2.) THE parties are neighbours at Bhilsa, running two contiguous shops. It is said that many years ago, a pillar had been put on the road some feet away from the shops, and more or less in front of the dividing line; a rafter said to be about 3 inches thick was put on that pillar and rested on the houses. The Plaintiff further alleges that both the parties had thatches projecting into the street, which, besides being supported on other pillars, were on this side supported by the rafter, each thatch going half way i.e. one and a half inches. Sometime before 1945, according to the Plaintiff, the thatches were burnt completely though some things of the pillar and the rafter remained. Then the Plaintiff served a registered postal notice on the Defendant, stating that the rafter and the pillar were joint property as also a three inch strip of land falling immediately below the rafter. He now wanted to raise his new thatch upon it, but apprehending some difficulty was making sure by this notice. The Defendant, for his part replied by asserting that the pillar, the rafter, and the strip of land just below the latter were his property and that the Plaintiff had nothing to do with it.

(3.) ACCORDINGLY , in 1950, the Plaintiff brought the present suit for injunction and for damages. He said that from some line on the side far away from the Defendant's house, his house -front is stretching to 7 ft. and 10 inches; the Defendant was wrongfully preventing him from making use of it. The Defendant for his part replied that he was not obstructing the Plaintiff from using his house -front, but he was not prepared to concede that the house -front was 7 ft -and 10 inches measured in the Plaintiff's own way. The trouble was that the Plaintiff wanted to enchroach on his house -front, at a small width of about 1/2 inches and a few feet length. To be sure the Plaintiff deems this to be his portion, measured upto the middle thread, of the 3 inches strip of land, that was under the rafter and extended up to the pillar, which has been there before 1945. In effect it was a suit for declaration that he was entitled to 1/2" more in that direction; further, Defendant not being prepared to allow this, the Plaintiff claimed damages at the rate of Rs.15 a month.