The main legal point established in the judgment is the application of Section 100 CPC in the second appeal and the court's affirmation of the dismissal of the plaintiff's suit based on the finding of joint ownership of the disputed wall.

JUDGMENT

1. Appellant-plaintiff has preferred this second appeal under Section 100 CPC assailing the judgment and decree dated 11.01.2010 passed in Civil First Appeal No.57/2000 by the Court of Additional District Judge No.1, Bharatpur whereby and whereunder, while allowing the appeal, plaintiff's suit for permanent injunction has been dismissed and the judgment and decree dated 09.05.2000 passed in Civil Suit No.05/1998 by the Court of Additional Civil Judge (Junior Division) No.3, Bharatpur whereby and whereunder plaintiff's suit was decreed, has been set aside and further though the first appellate court dismissed the plaintiff's suit for permanent injunction, however, recorded a finding that disputed wall would remain common between both parties and respondents-defendants have been allowed to put their roof/load over the common wall.

2. Heard learned counsel for both parties and perused the record.

3. The relevant facts as culled out from the record are that both parties are neighbors and the dispute is in relation to a middle wall having width of 14 inch. Appellant-plaintiff instituted a civil suit claiming his sole ownership over the wall in question, sought a decree for permanent injunction against defendants to restrain them not to put any roof/load over the wall in question and not to open any window, allas etc. Respondents-defendants submitted written statements and denied plaintiff's claim alleging that the wall in question is not of sole ownership of plaintiff but is for common use by both parties as well as is in joint ownership of both parties. Both parties adduced their oral and documentary evidence in support of their respective contentions.

4. Learned trial court, vide judgment dated 09.05.2000, decreed plaintiff's suit and issued a decree for permanent injunction against defendants that defendants will not put any roof/load of their building over the wall in question, marked as A to B in the map appended with the plaint and further will not open any window, almirah, allas etc. in the disputed wall.

5. Defendants challenged the judgment and decree dated 09.05.2000, by way of filing first appeal. Before the first appellate court, admitted factual position between both parties came on record that defendants have already constructed their own separate wall adjoining to the disputed wall and further have put their roof/load of building on their own constructed adjoining wall. In such admitted factual situation, it was urged from the side of plaintiff that once defendants have already constructed their own separate wall, the decree impugned need not to be disturbed and now no dispute remains between parties, however, the first appellate court proceeded to decide the first appeal on merits taking a note that the dispute in the present suit is as to whether the wall in question is in sole ownership of plaintiff or common between parties, therefore, this dispute requires to be adjudicated.

6. The first appellate court, on the basis of documents Ex.A1 and Ex.A2, observed that in the wall in question, one almirah has already been constructed having opening towards defendants' house and four iron nails are installed, which seems to be for affixing the gate on the almirah. The first appellate court observed that when an almirah is already constructed and having its opening towards defendants' house, in such factual matrix this wall is obviously a wall for common use and cannot be treated as wall of having exclusive ownership of plaintiff. With such fact finding, the first appellate court quashed and set aside the judgment and decree of trial court dated 09.05.2000 and dismissed the plaintiff's suit vide judgment dated 11.01.2010. But thereafter, the first appellate court has further observed and recorded an additional finding by its own that the wall in question shall remain joint and common between both parties and defendants are permitted to put load/roof of their building using this common wall.

7. Learned counsel for bo