BHIM SEN Vs. ASHOK CHHABRA

JUDGEMENT

(1.) A finding of fact has been returned by the trial court and affirmed by the learned Additional District Judge, Rohtak in the judgment and decree dated January 31, 2015 that the disputed staircase was for common use of the plaintiff and the defendant. The defendant is in second appeal against this finding of fact. The plaintiff and the defendant are brothers who bought separately two adjacent shops from the same seller.

(2.) The facts in brief are: The plaintiff purchased his shop vide registered sale deed dated June 11, 1981. On the same day, the defendant purchased the shop adjacent from the common vendor vide registered sale deed of even date. There is only one staircase which serves the first floor of the two shops. Since the two shops were owned by the same person, namely, Kishan Chand he had much before the sale constructed the staircase on the western side of the shop purchased by the plaintiff. The eastern wall of the defendant's shop is joint. The shop is 3" wide excluding the walls. This staircase runs straight to the roof of the second floor. Before the dispute started the staircase had been used in common access before the filing of the suit by both the parties to the first and second floors above the shops which have common roof.

(3.) The plaintiff alleges that the defendant had demolished the staircase without consent up to the 'chobara' excluding one visible step and also that building material was still lying on the spot when the suit was instituted on February 28, 2002. The plaintiff alleged that there was a 2 inch wide wall between the shop of the defendant and the staircase, i.e., the dividing wall of the defendant which had been demolished. The defendant by demolishing the staircase wanted to extend his shop up to the western wall of the staircase whereby enlarging floor space of his shop. The width of the shop of the defendant was 6'5-1/2 inches. In this manner, plaintiff says that the defendant intended to extend his shop up to the western wall of the staircase by adding an area of 3 feet comprising the staircase + 2' wide eastern wall of the staircase which stood already illegally demolished by the defendant. The defendant is alleged to have encroached upon 5' wide area which he wants to add to his shop. In these circumstances, the suit was brought for permanent and mandatory injunction with consequential relief of possession against the defendant. A direction was sought to restore the staircase to its original state.