MADAN LAL Vs. VED PARKASH BHATNAGAR

JUDGEMENT

(1.) THE learned trial Court vide its judgment and decree dated 13. 11. 1995 dismissed the suit for declaration and permanent injunction filed by one Shri Ved Parkash Bhatnagar, plaintiff. It was averred by the plaintiff that he was owner in possession of the house situated in Mohalla Kayasthan, Rohtak. There are three rooms adjacent to the southern wall of the plaintiff. The wall of the middle room is exclusively of the plaintiff whereas wall towards the western side is common that of the plaintiff and the defendant, having a thickness of 22" and the same is marked C&d. It was further alleged that the defendant had pulled down the wall CD alleging it to be his exclusive wall and had reconstructed the same by constructing a room on the first floor. The defendant was threatening to pull down the wall at point C and D on the ground floor now which is old one on the basis that it was his exclusive wall. If the defendant succeeds in his designs, the plaintiff would suffer irreparable loss and damage.

(2.) THE suit was contested by the defendant who stated that point B to C was not exclusively of the plaintiff and the wall of the room towards western side is common between the parties. It was contended that defendant has demolished the portion of the old wall which was 22 inches and in order to construct the new wall with the marks ABCD it was alleged that the plaintiff had encroached upon the area of the wall which he has no right. The plea of there being a specific gap between the house of the plaintiff and the defendants was taken by the defendant.

(3.) THE learned first Appellate Court inspected the site in question and after inspection in presence of the parties allowed the appeal; set aside the judgment and decree of the trial Court. The relevant part of the judgment of the First Appellate Court dated 28. 11. 1996 reads as under:" During the course of lengthy arguments, spanning over two dates of hearing, the parties chose to make statements that controversy be decided by this court after inspecting the spot. The appellant in his statement made before this court alleged that the wall shown by letters DC in the site plan Ex. P1 is a single wall without any gap and in case, during inspection any gap is found between, the house of the appellant and the respondent, his appeal be dismissed, in the other event, his appeal be allowed. This statement made by the appellant was accepted by the respondent. The spot was inspected by the court on 26. 11. 1996 in the presence of Shri M. S. Jain, Learned counsel for the appellant and Shri N. N. Girhotra learned counsel for the respondent. After spot inspection of the houses of the parties, it is difficult to hold that there is any gap between the two houses or there are two separate walls. There is a single wall separating walls. There is a single wall separating the house of the appellant and that of the respondent because there is an almirah at point 'x' in the portion of the wall 'ab' towards the house of the appellant. In case of the entire wall would have been the exclusive property of the respondent, the question of existence of almirah in the room of the appellant would not have arisen. So, the entire wall marked by letters A, B, C, D, as shown in the site plan Ex. P1 attached with the plaint is held to be the joint wall of the parties upon which both the parties will have right to raise construction. In terms of these findings, appeal succeeds. The judgment and decree of learned trial Court are set-aside. In view of the fact that the matter is being decided on the compromise statements made by the parties and after spot inspection, the parties are left to bear their own costs in appeal. Decree sheet be prepared. L. C. record will revert back. Appeal file be consigned after compliance. "