LAXMI NARAIN Vs. MODI & ORS

JUDGEMENT

(1.) The appellants-plaintiffs (legal representatives of original plaintiff- Laxmi Naraian) have filed the present second appeal in this Court on 20.11.2009 under Section 100 of Code of Civil Procedure, 1908, aggrieved by the judgment and decree dated 10.08.2009 passed by learned Additional District Judge (Fast Track), No.2, Bikaner in Civil Appeal No.60/2009- Modi Wd/o Prema Ram & Ors. Vs. Laxmi Narain S/o Bakhatawar Lal and others, whereby the learned lower appellate court allowed the appeal of the defendants No.1 to 7, while reversing the judgment and decree dated 30.04.1985 passed by learned Additional Munsif No.1, Bikaner in Civil Original Suit No.128/1977- Laxmi Narain Vs. Modi & Ors., and dismissed the cross-objection filed by the plaintiffs-appellants.

(2.) Mr. Suresh Shrimali, learned counsel for the appellantsplaintiffs relying upon the judgments in the case of Roop Chand Vs. Punamchand, 1962 AIR(Raj) 227 and Kapoor Chand & Anr. Vs. Kailash Chand, 1973 AIR(All) 170 submitted that even if the learned lower appellate court had found that common wall of 9" width between the two houses of the plaintiff and the defendants was a joint wall, as against the said wall claimed by the plaintiff to be his exclusive wall, which the learned trial court also accepted, even in the face of this finding of fact given by the learned first appellate court, the learned appellate court had erred in not giving further a mandatory injunction in favour of plaintiffsappellants and against the defendants that any construction raised on such common wall without prior consent of the plaintiff by the defendants was required to be demolished by way of mandatory injunction. He, therefore, submitted that substantial questions of law arise in the present case and the present second appeal of plaintiffs deserves to be admitted.

(3.) On the other hand, Mr. Sajjan Singh, learned counsel for the respondents-defendants vehemently submitted that finding of learned lower appellate court below is based on the "Patta" (Ex.2) issued in favour of plaintiff himself in the year 1944. The learned lower appellate court below had discussed in para 12 of its judgment dated 10.08.2009 that the plaintiff had paid the price at the time of issuance of said "Patta" (Ex.2) only for half of the common wall and consequently the learned lower appellate court had rightly found that the common wall between the two houses was a jointly owned common wall and the defendants being the co-owners of the said common wall, no mandatory injunction could be granted in favour of plaintiff, much-less mandatory injunction that the construction, if any raised by the defendants on the said common wall, deserves to be demolished.