DEVI NARAIN Vs. CHAND NARAIN

JUDGEMENT

(1.) Against the judgment and decree of the Senior Civil Judge, Jaipur City passed by him on 20th July, 1959 the plaintiff has come up in second appeal.

(2.) There is a 'haveli' situated on Nahargarh Road, Jaipur City. It was jointly owned by Mst. Raja and defendants Chand Narain, Radha Ballabh and Ram Shanker. Mst. Raja mortgaged her share in the property to Brij Mohan, since deceased and now represented by Devi Narain and others. A decree having been passed against Mst. Raja the mortgaged property was purchased by Devi Narain and others. This 'haveli' has a 'pol' measuring about 10'5" x 7'10" as per plan Ex. 2-A. In the earlier stage of this litigation Devi Narain and others claimed this 'pol' to be their exclusive property but this stand has been now abandoned and it is common ground that this 'pol' is the joint property of Devi Narain and others, Chand Narain, Radha Ballabh and Ram Shanker. Beyond this 'pol' in the plan Ex. 2-A there is a 'chowk' which has a stair case belonging exclusively to Chand Narain shown in green colour. Chand Narain covered half the portion of the 'pol' abutting his part of the property and constructed a wall in the chowk which provoked the plaintiffs to institute a suit for a mandatory injunction. The suit was resisted by Chand Narain. The trial Court expressed the opinion that the 'pol' was the joint property of Chand Narain, Radha Ballabh and Ram Shanker and Devi Narain and others. He, however, held that no case for demolition of the half roof was made out because the co-sharers were equally entitled to enjoy it. The trial court, however, granted a mandatory injunction to the plaintiffs in regard to a wall in the chowk which Chand Narain had made and ordered it to be demolished. I am told that the same has since been demolished and no controversy survives on that account. The plaintiff having not succeeded in getting the roof constructed by Chand Narain demolished, preferred an appeal. Before the first appellate Court a major portion of the controversy related to the question whether the 'pol' was the joint property of Mst. Raja with Chand Narain and others or the exclusive property of Mist. Raja which was purchased by Devi Narain and others. In the last paragraph of the judgment the first appellate Court came to the conclusion that the 'pol' was undoubtedly the joint property of the plaintiffs and the defendants. In the circumstances of the case he found that all the parties will have the right to use the roof constructed by Chand Narain, therefore, it need not be demolished. It was also observed that it was not shown how the plaintiffs were adversely affected by this construction. The plaintiffs have come up in second appeal.

(3.) Learned counsel for the appellant argued that the 'pol' in question, having regard to its situation, without a roof was an obvious source of light and air to the plaintiffs' apartments, and any coverage thereof would materially affect the benefits available to the plaintiffs' property. His further submission is that howsoever noble the sentiment may be that the plaintiffs would also be able to use the roof that Chand Narain has constructed at his own expense, it is completely devoid of realism because there is no way to reach it without going through the stair-case of Chand Narain. Practically speaking, in the ultimate analysis it will be a roof exclusively for the use of Chand Narain while it would diminish the light and air to the plaintiffs' premises. He also contended that the plaintiffs' predecessor-in-title Mst. Raja had instituted a suit before the Munsiff, Jaipur, seeking an injunction against Ram Shanker, Radha Ballabh and the father of the defendant Chand Narain restraining them from making any encroachments on this disputed 'pol', and eventually a judgment was pronounced by the said Munsiff on 22nd Jan., 1953, that the 'pol' in dispute was the joint property of Mst. Raja, Radha Ballabh, Ram Shanker and Chand Narain and that none of the co-sharers could make any construction on it. Notwithstandig this judicial order of injunction passed against Chand Narain, and Radha Ballabh and Ram Shanker, Chand Narain had constructed the roof and now he seeks its continuance in the name of equity.