SHANTARAM BALKRISHNA Vs. WAMAN GOPAL WADEKAR

JUDGEMENT

(1.) The facts which have given rise to this appeal are briefly these. A plot of ground, which is shown in the plan, was originally owned by one Balkrishna. He left four sons, Shantaram, Vasantrao, Janardan and Shivshankar, and at a partition which was effected among the four brothers in the year 1916, this plot was divided into four parts. The plot marked A in the plan fell to the share of Shantaram, the plot marked B was assigned to Vasantrao, the plot marked C was assigned to Janardan and the plot marked D was assigned to Shivshankar. There was a common passage left which is shown in the plan and which is marked E F H G. There is no special provision in the decree based upon the award relating to the partition, but it appears from the descriptions of the various plots given in the Schedules that the said land was reserved for the common passage. On September 19, 1916, Janardan conveyed his interest in the plot D to the present plaintiffs, and on September 28, 1916, Shivshankar conveyed his interest in the plot D to the 1 plaintiff on behalf of both the plaintiffs. On June 18, 1919, Vasantrao conveyed the plot B including his right, title and interest in the strip of land called the common passage to Bhagvandas Tapidas, the original defendant No. 2.

(2.) It appears that before the date of this last conveyance the present plaintiffs who had become owners of plots C and D built in such a manner as to make some encroachments upon the common passage which are shown in the plan, and a suit was filed by Shantaram and Vasantrao for the removal of those encroachments. In that suit a decree was passed on August 6, 1918, against the present plaintiffs. A copy of that decree was annexed to the plaint but has not been formally put in as an exhibit. In the course of the argument the decree has been referred to, subject to the appellant putting in a certified copy of the decree as an exhibit. The result of this decree was that the plaintif's were required to remove the encroachments which they had made on this common passage.

(3.) Then on August 22, 1919, the said Bhagvandas conveyed in favour of the plaintiff's his interest in the small strip of land forming part of the plot B in the south marked OPJL, and his right, title and interest in the portion of the common passage between the plots C and D and marked EFML. In virtue of these conveyances at the date of the present suit, which was filed in September 1919, the plaintiffs had become owners of the plots C and D, and it may be taken for the purpose of this appeal that they had become owners of 3/4 of the interest in that portion of the common passage which is marked EFML. and were interested along with the owners of plots A and B as co-owners in the remaining portion of the land described as common passage, namely LMHG. I may add that the common passage joins the main road at its northern end and is closed by a wall of the adjoining premises at its southern end. As a passage it ends at the line EF. The present suit was filed with a view to seek partition of the land which has been described as common passage, and the prayer was to secure the result-that the partition should be so effected as to make the owners of plots C and D absolute owners of the portion of the passage EFML; to assign the absolute interest in the soil of that part of LMHG towards the line MH so far as the owner of the plot A was concerned, which would represent 1/4 th of the whole area of this passage, to the 1 defendant; and to allow to the owner of plot B the absolute interest in the soil of that portion of LMHG towards the line LG to the extent of 1/4 interest in that part of the passage which is marked LMHG. The intermediate narrow strip which would be very small was to remain the absolute property of the owners of the plots C and D with the right of passage in favour of the plaintiffs over the whole of the land marked LMHG subject to such compensation being paid to the owners of plots A and B as the Court might think proper. This would make the plaintiffs the absolute owners of the southern half of the passage, while the remaining half would remain exactly as it was at the date of the suit for the benefit of all the four owners.