CHAMPALAL Vs. PANNALAL

JUDGEMENT

(1.) THIS is a second appeal by the defendant in a suit for injunction.

(2.) THE respondent filed a suit in the Court of Hakim, Pali on 30th September, 1944 against the appellant on the allegations that in Mohalla Brahampuri at Pali, there was a plot of land marked ABCD in the plan attached to the plaint, which was divided in equal portions between the parties and it was agreed on Besakh Sudi 5, Smt. 1999 that each co-sharer will leave a strip 3 ft. wide out of his land towards the other party so as to leave a way 6 feet wide between the two plots on which construction was to be made. It was alleged that the plaintiff left 3 feet towards the side of the defendant but that the defendant was bent upon making construction on the entire plot falling to his share without leaving a strip of land 3 feet wide out of his land as agreed upon. THE defendant denied the agreement and asserted his right of making construction on the entire plot falling to his share. THE plaintiff had filed along with the plaint a copy of the agreement keeping the original with him. When the case came up for trial the original was stated to have been lost and the trial court allowed the plaintiff to lead secondary evidence. After trial, the Munsif Pali, to whom the case had been transferred, held on the basis of secondary evidence that the plaintiff had proved the contract relied upon by him and that he had also performed his part of the contract by leaving a strip of land 3 feet wide from his land, and decreed the suit. THE same judgment was upheld on appeal.