NATHULAL Vs. ROSHANLAL

JUDGEMENT

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

(2.) THE respondents Roshanlal and Manohar Singh sued the appellant Nathulal on 7th June 1944 on the allegations that the two plaintiffs and the defendants as also the pro forma defendant Malam Singh owned houses having a common approach through Bansarwali Pol at Udaipur and that between the houses of the parties there was a chowk, that is, an open space of land, which was the joint property of the parties. It was alleged that the defendant Nathulal while reconstructing his house was encroaching upon the joint chowk to the extent of a strip of land 2 feet wide and 13 feet long and further the defendant wanted to open a door on a joint chabutary situated on the outer side of the Pol. On a prayer by the plaintiffs, a temporary injunction was granted restraining the defendant from making any construction in the chowk alleged to be joint between the parties. THE defendant pleaded that whatever construction he had been making was on the land of which he was the sole owner. As the suit proceeded the defendant made certain further constructions and these were challenged by an amendment of the plaint on 18th July 1945. It was alleged by this amendment that the defendant had inserted three brackets and constructed a ros over them in the northern wall of his house encroaching upon the joint chowk. This ros was said to be 2 feet wide and 10 feet in length. It was stated that this construction was started on the 17th of July 1945 although the defendant had been prevented by an injunction to make any new construction on the joint chowk. It was alleged that this construction would adversely affect the enjoyment of their other property. THE defendant also began constructing a staircase on the western, side of his house during the course of the suit but was stopped from completing the same by a temporary injunction. In respect of the brackets and the ros, the defendant's reply was that this had been constructed overhanging a strip of land where his chabutaries existed formerly and which was the sole property of the defendant. It was also stated that although the chabutaries did not exist they would be constructed later on. It appears that during the course of the suit the plaintiffs did not insist on their allegation that the defendant in making the construction of his house had encroached upon any joint land and the case came to be tried on the other allegations only. THE trial court held that the portion of the land marked ABC in Ex. P-7 which was the plan of the site, was in defendant's occupation, there being chabutaries prior to the dismantling of the house and that these chabutaries belonged to the predecessor-in-title of the defendant, and therefore the defendant could not be stopped from constructing the brackets and the ros on the northern side of his wall. As regards the stair-case constructed on the western side of the house and marked as ST in the said plan, the court held that this was an encroachment on the joint land and should be removed. As regards encroachment on the chabutary outside the Pol the court held that some-portion of the chabutary belonged to the defendant while another portion was joint; but the plaintiff had failed to prove that the encroachment was on the joint portion. THE court, therefore, passed a decree for demolition of the stair-case and issued an injunction restraining the defendant from making an encroachment on the joint chowk (beyond the pre-existing chabutaries) but dismissed the suit with respect to the brackets end the ros and the alleged encroachment on the chabutary outside the Pol.