HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Second Appeal No. 60/2010

Chaturbhuj S/o Shri Chandrabhan Brahmin, aged 70 years, r/o

Nyotha, Teh. Nadbai, Distt. Bharatpur

----Plaintiff-Appellant

Versus

1.

Bhoodev Prasad S/o Shri Ramjilal, Nyotha, Teh. Nadbai,

Distt. Bharatpur

2.

Sunil Kumar S/o Shri Bhoodev Prasad, Nyotha, Teh.

Nadbai, Distt. Bharatpur

----Defendants-Respondents

For Appellant(s)

:

Mr. J.P. Goyal, Senior Advocate

assisted by Mr. Abhi Goyal

For Respondent(s)

:

Mr. R.K. Agarwal, Senior Advocate

assisted by Mr. Shubham Kumar

Sharma

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

04/08/2022

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

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[CSA-60/2010]

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

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[CSA-60/2010]

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, whi