BARKAT RAM Vs. LABHA RAM

JUDGEMENT

(1.) THE following substantial questions of law arise for consideration in this second appeal: -

(2.) THE defendant's contention was that he was raising a wall further to construct a chabutra and that he should have the entitlement to do so, since it was admittedly a common wall. The trial Court dismissed the suit finding that the plaintiff cannot prevent a wall that belonged in common to the defendant and the said finding was also affirmed in appeal.

(3.) FROM the time when the suit was instituted till date, there appears to be no interim order of injunction in favour of the plaintiff. This decree ought not to therefore give a new right to the plaintiff to seek for demolition of any construction that could have come up. The plaintiff's suit itself was in the nature of a quia timet action and if the apprehended injury for restraint through injunction could not effectively secure to the plaintiff the relief at that time, I only believe in the normal course of events, the construction could have still proceeded. In order that the relief that is granted does not turn out to be ultimately merely illusory, I have reiterated the principle that would at least allow for the plaintiff to keep his common rafters or beam in the party wall at a still further higher level, but his own action shall must be understood as only allowing the party wall raised by the defendant to be continued to be retained in common ownership, no matter that the defendant alone may have put up the further constructions.