TARA CHAND Vs. KESHAR DASS

JUDGEMENT

(1.) THIS is defendant's second appeal directed against the judgment and decree for the Court's below whereby suit of the plaintiff for permanent injunction has been decreed against the defendant.

(2.) PLAINTIFF filed suit for permanent injunction restraining the defendant from raising any construction on joint wall A-B shown in red colour in the site plan attached with the plaint. Case of the plaintiff was that he is owner of house shown in the site plan attached with the plaint whereas defendant is owner 'of house adjoining , the house of the plaintiff. Plaintiff, however, contended that there is a common wall separating their houses and the wall has been shown in red colour as AB in the plan. Plaintiff contended that the defendant threatened to raise construction on common wall. Hence, suit for injunction. Defendant, on notice of the suit, in his written statement, contended that the wall in question was not a common wall but exclusively belongs to him. On the pleadings of the parties, the following issues were framed :

(3.) Both the Courts below, on appreciation of evidence on record, have concurrently found that the Wall A-B is a common wall and separates the houses of the plaintiff and defendant, The only contention raised by the learned counsel for the defendant is that once the wall has been held to be a common wall, no injunction could have been issued against the defendant for not raising any construction over the common wall as being the co-owner, the defendant has every right to use the common wall in a reasonable way. 6. Against this, it has been contended by Mr. Puneet Bali, Advocate, counsel for the respondent that no such plea was taken by the defendant in appeal and the only contention raised before the first Appellate Court was in regard to the validity of the report of the Local Commissioner.