BHANWARLAL Vs. NORATMAL

JUDGEMENT

(1.) THIS is a defendant's second appeal arising out of a suit filed by Lalchand. (who has died during the pendency of this litigation and is now represented by his legal representatives Noratmal and others) in the Court of Sub-Judge. First Class, beawar on 4-7-1953 praying that the defendant may be restrained from interfering with the southern wall of the plaintiff's stair case on the first floor, and may further be directed by a mandatory injunction to restore the wall to its original condition by making such repairs as may be necessary.

(2.) THERE is a staircase between the plaintiff's shop and the defendant's shop situated in Mewari Bazar, Beawar. This stair case was admittedly used by both the parties, for going to the first floor of their respective shops. It appears that a few years before the institution of the suit the plaintiff built a room on the first floor of his shop, and also constructed a stair case, for going from the first floor to the terrace on the second floor, just above the staircase from the ground floor to the first floor. The way to the upper stair case, that is the stair case leading to the terrace on the second floor is through the plaintiff's room. It may be noted that there was a door leading from the lower stair case to the terrace of the defendant's shop. The defendant wanted to fix shutters in this door. This was resisted by the plaintiff and he filed the present suit for getting the defendant restrained from fixing shutters in the door- It1 was also averred in the plaint that the defendant was threatening to break the southern wall of the stair case on the first floor and therefore it was prayed that he may be restrained from interfering with the southern wall of the staircase. The plaintiff's case as set out in the plaint was that both the stair-cases as well as the walls on both the sides on which the steps of the staircases rested exclusively belonged to him and the defendant had only a right to U3e the lower stair-case.

(3.) THE suit was resisted by the defendant mainly on the ground that the lower stair case as well as the upper stair case jointly belonged to the parties and the southern wall of the staircase exclusively belongs to the defendant and the northern wall of the stair case belongs to the plaintiff.