ROSHAN LAL Vs. MANOJ KUMAR

JUDGEMENT

(1.) This second appeal is arising out of the judgment and decree dated 31.10.2007 passed by the learned Additional District Judge No.1, Bikaner in Civil Appeal (Decree) No.49/2007 "Manoj Kumar S/o Sohan Lal & Smt. Bhikhi Devi W/o Sohan Lal Vs. Roshan Lal S/o Jeevraj Sethia & Anr." who allowed the appeal filed by the present respondents-defendants and set aside the judgment and decree dated 19.11.2003 passed by the learned Additional Civil Judge (Senior Division) No.4, Bikaner in Civil Case No.93/2001 "Roshan Lal S/o Jeevraj Sethia Vs. Manoj Kumar S/o Sohan Lal Pugalia and Smt. Bhikhi Devi W/o Sohan Lal Pugalia & Anr." by which, the learned Additional Civil Judge (Senior Division) had decreed the suit filed by the appellant-plaintiff Roshan Lal seeking perpetual and mandatory injunction in relation to the disputed piece of land, which is a common chowk between the residential houses of the parties, situated at Bhinasar, Sethia Chowk, Bikaner.

(2.) The present second appeal has been filed by the appellant, who was the plaintiff before the learned Trial Court, against the reversal of the judgment of the learned Trial Court, by the learned First Appellate Court.

(3.) The learned counsels Mr. M.S. Purohit and Mr. B.S. Bhalasria appearing for the appellant-plaintiff Roshan Lal submitted that the defendants Manoj Kumar S/o Sohan Lal Pugalia had purchased the property in question with the condition stipulated in the sale deed in favour of their predecessor-in-title that the disputed portion (common chowk) of the property purchased by them would be kept open for common use for marriages and bereavements and meetings etc. even if the plaintiff Roshan Lal purchased the half portion of the plot of land in question from the different predecessor-in-title, the defendants were bound by that condition stipulated in the sale deed and, therefore, they cannot be allowed to use the disputed portion of the land, which is a common open chowk, for their private purposes and the same was meant to be used for common use between the parties. The learned counsel Mr. M.S. Purohit further submitted that since no written statement was filed by the defendants and no evidence was led by them, therefore, the learned Trial Court was justified in decreeing the suit filed by the plaintiff Roshan Lal which has been wrongly reversed by the learned First Appellate Court on the anvil of Section 11 of the Transfer of Property Act, 1882, therefore, a substantial question of law arises for consideration by this Court in the present second appeal filed by the plaintiff Roshan Lal.