SHAH POONAMCHAND Vs. VEERCHAND

JUDGEMENT

(1.) THIS D.B. Civil Special Appeal has been preferred by the defendant Poonamchand under Section 18(2) of the Rajasthan High Court Ordinance 1949 against the judgment and decree of the learned Single Judge of this Court dated March 26, 1971.

(2.) THE plaintiff Roopchand, now dead, represented by the present respondents Nos. 1 to 5 filed a suit for partition of the joint party -wall and also for injunction in the court of Munsif Abu, who decreed the suit of the plaintiff on 3.3.1964 and it was confirmed in appeal by the Civil Judge, Sirohi, by his judgment dated 31st August, 1964. The defendant -appellant preferred a second appeal to this Court. That appeal was dismissed with costs by the learned Single Judge and the decree passed by the court below in favour of the respondents was affirmed. Aggrieved by the judgment and decree of the learned Single Judge, this special appeal has been preferred by the defendant -appellant.

(3.) SUBSEQUENT to the decree passed in the above mentioned suit, Roopchand filed a suit for partition of the party wall and claimed that the wall be partitioned by metes and bounds and exclusive possession of the parties over the wall be demarcated; in the alternative the perpetual injunction restraining the defendant -appellant from obstructing the plaintiff from making the construction over the wall and taking support over it be granted so as to make use of the wall. This suit was opposed by the appellant. He claimed that the party -wall is his exclusive property and also pleaded that the suit was barred under the principles of res -judicata in view of the judgment in the former suit mentioned above. This suit for partition of the party wall was decreed by the courts below and that decree was affirmed by this Court in second appeal by the learned Single Judge.