BHIM SINGH Vs. BAKHTAWAR LAL

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree dated March 30, 1977 passed by the Civil Judge, Udaipur in Civil Appeals No. 29 of 1973 and 21 of 1973 dismissing the suit for injunction reversing the judgment and decree passed by the Additional Munsif and Judicial Magistrate, No. 2, Udaipur on December 18, 1972 in Civil Original Suit No. 1 of 1971.

(2.) THE facts in brief are that House No. 221 in Ward No. 9 situated at Udaipur was an ancestral property of plaintiff-appellant Padam Singh and the defendants Bakhtawar Lal son of Gopal Lal and Shanti Lal son of Bakhtawar Lal. On a partition, the ground floor became the property of defendants and the upper storey consisting of first floor and second floor became the property of plaintiff Padam Singh. As a result of this partition of one property, plaintiff became entitled to verticle support of walls of building on ground floor. It appears that the building was in dilapidated condition, there was a notice from the Municipal Council, Udaipur for demolishing of the house. As a result of which the first and second floors belonging to the plaintiffs were demolished, according to plaintiffs in 1950 and according to defendants in 1947.

(3.) ON Issue No. 2, it was held that the plaintiff has got right of vertical support from the servient heritage as an easement of necessity. Therefore, its existence does not depend on the prescriptive period of 20 years.