PUKH RAJ Vs. JAGDISH RAJ & ORS.

JUDGEMENT

(1.) In a suit for permanent mandatory injunction, appellant Pukh Raj alleged that he was the tenant of the shop given in para No. 1 of the plaint. The shop was leased on 16.5.1960 by Dule Raj, father of Jagish Raj, defendant No. 1, Madho Raj and Gopal Raj defendants Nos.6 and 7 who happen to be the real brothers of Jagdish Raj defendant No.l. Towards the north of that shop, is the house occupied by Jagdish Raj. Defendants No. 1 and 2, on 25.6.1962 are alleged to have opened a door in the southern well of the house towards the shop of the plaintiff, and it is being used for the roof of the shop. When the plaintiff wanted to erect a well on the roof of the shop to close this door, defendants Nos. 1 to 4 obstructed, hence, the plaintiff sought relief in the court by filing a suit. Jagdish Raj was the main contesting defendant, who pleaded that the door in question was there in existence for a pretty long time, and he has the right for using the roof. That the plaintiff had no cause of action. On the basis of the pleadings, various issues were framed and the learned Additional Civil judge held that the way coming over to the roof from towards the house in occupation of Jagdish Raj, was in existence prior to the shop being leased out to the plaintiff. As such, the learned Additional Civil Judge held that the plaintiff having failed to prove that the disputed door was opened on 25-6-1962, he was not entitled to close the door on the court.

(2.) The suit of the plaintiff being dismissed, he preferred an appeal in the court of District judge, jodhpur. The learned District judge, by his judgment dated 26-8-68, dismissed the appeal. Being aggrieved by that judgment Pukhraj has filed this second appeal. During the pendency of this appeal, the main contesting defendant Jagdish Raj expired on 2-11-1969, and his legal representatives were brought on record.

(3.) The learned counsel for the appellant has assailed the judgment of the two courts below on the ground that it was the unpartitioned ancestral house of which the shop of the appellant was a part, and the house occupied by Jagdish Raj, was also a part of that house, and therefore, the peaceful enjoyment of the shop leased by Dule Raj, father of Jagdish Raj, in his capacity as 'Karta' of the family, cannot be interrupted by Jagdish Raj, or his family members According to the learned counsel, the whole 'Nohra' including the shop. was rented to the appellant, and therefore, he was entitled to make use of the roof excluding the interruption by anybody. It has also been argued by the learned counsel that the shop was leased in the year 1950, when the family was joint and therefore, it does not lie with Jagdish Raj to say that they can use the roof even after its being leased out. The appellant has come with a specific case that it was on 25.6.1962 that the defendants Nos. 1 and 2 opened a door in the southern wall towards the roof of the shop of the plaintiff. The trial court as well as the first appellate court has elaborately discussed the evidence led from both the sides on this paint, and have arrived at a conclusion that the door was there in existence since long. While hearing this second appeal, the reappraisal of evidence on a question of fact is not called for, specially when the concurrent finding of the two courts blow is based on detailed scrutiny of the evidence led by both the parties. The two courts below have given definite reasons for disbelieving the witnesses of the appellant. Thus, this concurrent finding of fact that the door was not opened on 25-6-1962, as alleged by the appellant, rather it was in existence since long, cannot be disturbed in this second appeal.