Chhogalal vs Nandkishore

Shivdayal, J.—Two adjoining houses situated at Ashoknagar were originally joint Hindu Family property. On a partition between Hukumchand and Nanoulal they were separated into two houses or two portions. The northern side was given to Nannulal and the southern to Hukumchand. A staircase in between the two portions was kept as common property of both. On 1-2-49 Nannulal sold his portion to Champalal and in that sate the staircase was also included, Thereupon Hukumchand brought a suit which was decided in his favour. The plaint dated 8-8-50 is Ex.P. 3 and the judgment of the High Court of Madhya Bharat in that case is dated 28-4-54 and marked Ext-Dl (reported in 1955 M P. L. J. 288); In that suit it was held that the staircase belonged to both the brothers (Nannulal and Hukumchand) and could not be sold by Nannulal to Champalal without Hukumchahd''s consent. A permanent injunction was also issued against Champalal restraining him from using that staircase. During the pendency of that suit, Champalal sold the property which he had purchased to Nandkishore by a registered sale deed on 30-1-52.

The dispute in the present suit is that Chhogalal s/o Hukumchahd started constructing a wall on the ground floor in a tin shed 11''-4" long and 3''-3" broad, in front of the staircase. Moreover, on the first floor the defendant Chhogalal closed a door in the plain-tiffs wall which opened in the staircase, by putting a tin sheet in front of it. Thirdly. Chhogalal constructed a wall on the first floor in front of the staircase. Fourthly, the defendant constructed another wall on the back portion near the other staircase. The suit was resisted on the ground that that ever the defendant did was within his rights''. The learned trial Judge held that the disputed place of land on the ground floor, in front of the staircase, belonged to the plaintiff to the extent of 12 in length and 1'' 2" in breath but not the rest of that land(2''-l'''' in breadth) the first appellate Court'' upheld that finding.

Shri Inamdar contends that by virtue of the judgment of the Madhya Bharat High Court in the previous suit (Ex Dl) it must be held that the staircase and both the walls in which the steps are fixed as also all the steps in front of it on the ground floor belongs exclusively to the defendant. Learned counsel strenuously relies on that judgment and urges that it is binding on this Court. It is also argued that if there is any joint right in the disputed land on the ground floor, that right is common between Nannulal and Chhogalal but the plaintiff has no rights. I do not s''s any substance, in this contention. Whether in the previous suit an injunction was rightly or wrongly issued against Champlal cannot be considered by me. Nor does it really cal for any consideration. All that was declared in the suit was that Nannulal could not sell the common staircace without the content of Hukumchand. In the present case the staircase is not in dispute and in the previous suit the land in front of the staircase, on the ground floor, was not in dispute.

The learned appellate Court has relied On Hukumchand D. W. 1, Chhogalal D W Nannulal D. W. 5, and also Halkuram D.W. 3 when he held that the space leading to the staircase was kept for common use of both the co-parceners when there was a partition of the property. Since there is no doubt that the parties intended to sever, as soon as a partition was effected and the two portions were separated, any thing which was kept common between the two brothers remained common property, yet its nature altered from joint tenancy to tenancy-in-common. Shri Inamdar has been, unable to satisfy me or to cite any law or decided case to show why Nannulal could not transfer his undivided interest in the common space in front of the staircase. Nannulal, when the sold his own portion to Champalal was entitled to transfer this open space as well Whenever a joint owner sells his undivided interest, the vendee becomes vested with that interest and gets the right of partition. This position, of the law is obvious enough and it is unnecessary to support it by authorities. It is equally settled law that the defendant could not make any construction on the common land to the detriment of the other party''s interest.

Shri Inamdar''s argument that because in respect of the staircase Hukumchand succeeded in the previous suit, it became his exclusive properly or that both the walls in which the steps are fixed became his exclusive property and, further, the open space leading to the stair-case also became his common property is untenable and without substance. In the previous it was held that the staircase was the exclusive property of Hukumchand. Merely because on partition, a staircase was kept for common use; it cannot be said that the wall in which the staircase was fixed be-came the property of one party or another. On that reasoning Nannulal could not claim ownership. Of the southern wall of the staircase.

Shri Inamdar argues in the alternative that in no event could a decree for demolition be passed and at worst some compensation could be allowed to the plaintiff. In my opinion there is no equity in the defendant''s favor and the Suit appears to have been brought without delay, If I may say so, the defendant endcavcered to take undue advantage of the decision of the Madhya Bharat High Court in the previous suit, For these reasons a decree for demotion of the wall newly constructed on the ground floor, in front of the staircase, must be upheld.

As regards the remaining 2'' of the remaining portion of that space on the ground floor the Courts below have held on the strength of the evidence mentioned already that the spaces leading to the staircase must also be considered to be set apart for common use. In my opinion and for reasons already stated, that decision is correct and that the plaintiff was not entitled to a declaration that the entire, space in front of the staircase was his exclusive property. I has rightly been held to be common property of both the parties

Regarding the grievance about placing a tin sheet so as to close the door, on the first floor, Shri Jain concedes that he does not claim any right of light or air from it. That being so, and having regard to the feet that Champalal (and, therefore, Nandkishore) have been restarted "from using the staircase, there is no good cases for the plaintiff for the removal of the tin sheet. This relief has rightly been, refused by the Courts below. As regards the other two disputes, namely, the encroachment on the roof and encroachment can the back portion near the other staircase the dealing of both the below is that the plaintiff failed to prove his right in respect of these portion. They are findings of fact and Shri Jain could not point out to me any error of law nor is he able to show from the material on record that either of these findings is perverse. There was some dispute about electric fittings, but that was not pressed before the first appellate Court nor has been pressed before me.

No other point is urged by either side.

In the result Chhogalal''s appeal is dismissed and the cross-objections filed by Nandkishore are also dismissed. Both the parties shall bear their own costs in this Court.