POONAM CHAND Vs. SHAH VEERCHAND

JUDGEMENT

(1.) THIS is a defendant's second appeal against the judgment and decree of the Civil Judge, Sirohi, dated 3lst August, 1964, affirming the decree of the Munsif, Abu Road, dated 3-3-1964, decreasing the plaintiff's suit for partition of a joint party wall and injunction.

(2.) THE relevant facts are these - THE plaintiff respondent Roopchand, now dead, and represented by the present respondents nos. 1 to 5 his sons and daughters, was the brother of the defendant-appellant Poonamchand. THE two brothers owned houses adjacent to each other in village Rohida separated by a common party wall. In the samvat year 2009 the plaintiff Roopchand dismantled his house and started rebuilding it and in doing so, he raised the height of the party wall, set up some new 'aalas' and almirahs and put in a 'chimni'. Alleging his exclusive ownership over the party wall the present defendant filed a 3uit against Roopchand claiming mandatory injunction on directing Roopchand to demolish the party-wall in so far he had heightened it beyond the second storey and directing to close the 'aalas and almirahs and to restore it to the condition in which it stood before. THE plaintiff also claimed a perpetual injunction restraining the defendant from raising the height of this party wall without his consent in future- THE litigation between the parties ended by a decision of the High Court dated 27th July, 1961, copy of which is Ex. 7. It was held by this Court (1) that the wall which is the bone of contention between the parties was not exclusively of the plaintiff but was the joint wall of the parties. (2) "that it is not open to a co-owner of a joint wall to raise its height" or otherwise deprive the other co-owner of the use of such way without the latter's consent, whether express or implied, and where such an unauthorised interference is established a case does arise for the grant of a mandatory injunction within the meaning of sec. 55 of the Specific Relief Act. " This Court granted a mandatory injunction directing Roopchand to remove that portion of the wall in dispute which he had built in the third storey and which is beyond the height of 2 inc. from the terrace their in and also granted a perpetual injunction restraining him from building on the common wall without the consent of the plaintiff. THE Court also maintained the decree for the removal of the 'chiminey' and the readjustment of the balcony. Subsequently the plaintiff respondent Roop Chand filed a suit for partition of the party wall, and claimed the following reliefs - (1) THE wall be partitioned by metes and bounds and exclusive possession of the parties over the wall be demarcated. (2) In the alternative, the plaintiff prayed for a perpetual injunction res-training the defendant from obstructing the plaintiff from making the construction over the wall and taking support over it. (3) Any other relief beneficial to the plaintiff be granted. THE plaintiff averred that the defendant has been obstructing him from making construction over the land mentioned in his patta by restraining him from raising the wall and has not been permitting him to raise the wall and thus he was unable to make use of it.

(3.) IN this view of the law, I find it difficult to accept the second conten-tion of the counsel for the appellant.