HASTIMAL Vs. BACHHRAJ

JUDGEMENT

(1.) This is a second appeal by the plaintiff in a suit for declaration and injunction.

(2.) The appellant sued the respondent on 17th April, 1942 on the allegations that the parties resided in Mohalla Dhan Mandi at Balotra and that between the houses of the parties there was certain open land, a portion whereof marked A B C D E and F in a plan attached to the plaint was his pattu-shud land and was in his possession. It was alleged that the plaintiff built a wall A B on the site of an old wall which had fallen down some years ago, but the defendant objected to the said construction and took proceedings under section 147 Cr.P.C. and got the wall demolished on 9th of May, 1941. The plaintiff claimed a declaration of his title to the said land, and an injunction against the defendant restraining him from obstructing in the construction of the wall A B. The original plan filed with he plaint having been lost, the plaintiff filed a copy in the court of Civil Judge after remand, and is marked Ex P. 1. The plaintiff also claimed Rs. 200.00 by way of damages for wrongful demolition of the wall, but on the matter coming up in revision in the High Court at Jodhpur, the plaintiff reduced his claim for damages to the nominal amount of Re. 1/. The respondent did not admit the plaintiff's ownership of the land A B C D E F, denied the existence of the previous wall, and claimed rights of easement over the said land and pleaded that the plaintiff had no right to construct the wall which he wanted to build. Various issues were raised. The trial court found that the area at site was less than the combined areas mentioned in the patta of the plaintiff and the defendant, and that any construction on the plot by the plaintiff would result in overcrowding, and in the opinion of the court, the plots of the plaintiff and the defendant should remain unbuilt. He accordingly dismissed the suit.

(3.) On appeal, the learned Sub-Judge, Balotra, found that the place A B where the plaintiff wanted to build would fall within the patta-shud land of the defendant, and the plaintiff had no right to build at the place. He was, however, of opinion that the land bad been used by the parties in connection with marriages and deaths in the family and should be kept open. He accordingly confirmed the decision of the lower court.