Dave, J.—Both the cross appeals arise out of the same suit and therefore they are disposed of together. They are directed against the judgment and decree of the learned Civil Judge, Tonk, dated the 27th February, 1953, modifying the decree of Munsif Tonk dated 31.10.52 in a suit for mandatory and perpetual injunction.

2. The dispute between the parties relates to a house which is situated in the town of Niwai in a locality which is known as Khari Kui-ka-Bas. It is Common ground between the parties that different portion 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 No. 1 had encroached upon the joint property, that the said construction had not only deprived the plaintiffs from their right over the property but it had further caused material damage to the property which was in their sole possession inasmuch as the new construction had obstructed light and air reaching that part of the building. It was prayed that defendant No. 1 should be directed by mandatory injunction to demolish the construction which he had made over the joint property and that he should be restrained by a perpetual injunction from making any construction thereon thereafter.

4. Defendant No. 2 Ratanlal supported the plaintiffs case and urged that he was not in collusion with defendant No. 1 and that he was unnecessarily impleaded as a defendant.

5. Defendant No. 1 contested the suit saying that he had not infringed upon any right of the plaintiffs and that the suit was therefore fit to be dismissed. From the pleadings of the parties the trial court framed 5 issues and after recording evidence of both the parties and inspecting the site, it came to the conclusion that the disputed passage was originally 5 3 1/2" in width, that defendant No. 1 had raised pillars on one side and narrowed it by 10", that on the other side also, he had raised pillars and the passage had been narrowed down by 8 1/2", that in this manner the total width had been narrowed down by 1 6 1/2" leaving a space of 3 9" in width. It also came to the conclusion that this passage was joint property of the parties and that defendant No. 1 had no right to make any construction 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 opinion of the first appellate court the plaintiffs could be compensated by damages and therefore it modified the decree of the trial court by ordering the defendant to pay Rs. 150/- for compensation to the plaintiffs. The defendant was also directed not to make any construction on the first floor. Both the parties are dissatisfied with this decree dated 27.2.53 and therefore both of them have filed separate appeals.

6. Learned counsel for defendant appellant Chhaganlal has urged that when the first appellate court had allowed Rs. 150/- for compensation to the plaintiffs, it should not have restrained his client from making any

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