9911796707
TMI Blog1958 (11) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... locality which is known a Khari Kui Ka Bas. It is common ground between the parties that different portions of the said house are occupied by the parties to the suit. There are two chowks in this house. The property which is in possession of the plaintiffs is situated in the inner chowk. There was an open passage leading from the first chowk, to the second chowk. 3. It was averred by the plaintiffs that the said passage between the two chowks was joint property of the parties, that defendant No. 1 Chhaganlal in collusion with defendant No. 2 Ratanlal started constructions on the said joint lane on 12-12-50 and after erecting pillars on both sides of the lane he covered it with stone slabs. Thus, according to the plaintiffs, defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this passage was joint property of the parties and that defendant No. 1 had no right to make any constructions thereon. It therefore allowed the plaintiffs' suit and ordered the new construction to be demolished. Defendant No. 1 was further directed not to make any construction on the disputed passage ever in future. Aggrieved by this decree dated 31-10-52 defendant No. 1 filed an appeal which was heard by learned Civil Judge Tonk. The learned Civil Judge also concurred with the findings of fact arrived at by the trial Court, but at the same time it was observed by him that the plaintiffs were not able to prove any substantial damage and therefore he thought that the order about demolition of the construction was not proper. In the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decree of the first appellate court should therefore be set aside and that of the trial court should be restored. In reply to this argument learned counsel for defendant-appellant Chhaganlal has urged that his client has not raised a wall over the entire length, but he has only raised 2 pillars on one end, that similar pillars were already existing on the other end and his client has only covered the passage. It is contended that under these circumstances the trial court's order for demolition of the new construction was not proper. In support of his argument learned counsel has referred to Paras Ram v. Sherjit ILR 9 All 661. In that case it was held that the mere circumstance of a building being erected by a joint owner of lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... co-sharer plaintiff and also before the building was started objection was taken to its erection. The learned Judges in the above case followed the view taken in Paras Ram's case ILR 9 All 661 but it has already been pointed out above that the principle which was laid down by Mahmood J. in Paras Ram's case ILR 9 All 661 is of little help to the defendant-appellant in the facts and circumstances of the present case and therefore the view ex-pressed in the Patna case AIR 1952 Pat 351 does not carry the defendant's case any further. Learned counsel has then referred to Joy Chunder Rukhit v. Bipro Churn Rukhit ILR 14 Cal 236. This case was referred in Paras Rani's case ILR 9 All 661 and it is therefore distinguishable for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiff, but it was refused for another reason. That reason was that the plaintiff himself had covered a part of the lane and this is why the learned Judge did not think it proper to order the demolition of the construction made by the defendants, since he thought that the defendants were also in equity entitled to make a construction similar to the one which was made by the plaintiff. On the other hand, it may be pointed out that in Subbayya v. Somalingam AIR 1920 Mad 223 the plaintiffs and the defendants were joint owners of a lane which was 10 in width. The defendants had encroached upon the lane to the extent of 1' in breadth. The plaintiffs brought the suit for mandatory injunction for the removal of the obstruction. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land on which the construction is made is not agricultural land and is not such which can be partitioned. The situation of the joint chowk in this case is in the crowded town of Udaipur where open spaces are necessary, not only for rights of way and use on ceremonial occasions but also in order to supply fresh air to the occupiers of the neighbouring houses. The order of the learned District Judge issuing a mandatory injunction for the demolition of the construction, i.e. the brackets and Ros was maintained. It is clear from the observations made above that the correct principle of law is that if one of the joint owners makes a construction over a common property, which is incapable of partition, the proper remedy to be given is the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
