Decided on February 24,1954


Referred Judgements :-



- (1.)This appeal arises from a suit for partition and separate possession of a half share in the suit property. The plaintiff also claimed an injunction restraining defendant No. 1 from executing a decree by darkhast No. 159 of 1944. The plaintiff also prayed for other reliefs.
(2.)The parties belong to a family of the name of Keravala. Their common ancestor was one Jamshedji who had two sons, Jehangirji and Burjorji. Jehangirji is defendant No. 1 in the suit, while plaintiffs Nos. 1 to 4 and defendant No. 3 are the sons of Burjorji. Defendant No. 2 is the son of defendant No. 1. On October 17, 1909, Jamshedji made a will of which a probate was obtained by his widow Bai Dhanbai. On December 7, 1923, a partition took place between the two branches represented by Jehangirji and Burjorji and at the partition the family property was divided. At that partition certain property which is now in dispute was kept undivided for a common passage. As a good deal of controversy turns upon the language of the partition deed in this appeal, it will, I think, be necessary to set out the terms of the deed of partition with reference to this property:
"That road in between is 16 feet wide and it measures less near the gate with doors for coming out. On the extreme western side of that road, to the north there is a latrine. That latrine has fallen to the share of myself of the first side and adjoining to it, to the south in eight feet, the parties on the other side have a right to erect a latrine. We persons of both sides have two maps signed by each other showing measurement where the road is narrow at the exit and showing breadth and length. That road is half of myself of the first side and half of us of the other side as stated. No one has a right to construct, a step etc. or anything else and to narrow down the road, nor has anyone a right to discharge dirty water. Both have also to do repairs (!) so that only rain water may pass and so that the right Of daily use may not be interfered with. This whole road is approximately 193 yards."
This description is again repeated in the document and at p. 41 the deed of partition goes on to say as follows:
"If we of the other side at any time sell the land of this share, there is no right to sell this road to others. So the party on the first side has to take in his possession the whole road by paying the proper price for the half share of land out of the whole land of 193 yards, to the parties on the other side. If the parties on the other side sell this property 15 x 10 yards or any part thereof, they have to make their passage, by taking land out of land 6, No. 4 to the south after- leaving the land in this compound through the road having two walls east-west."

(3.)The partition has been signed by defendant No. 1, Bai Dhanbai, Bai Ratanbai, wife of Burjorji, Rustomji (defendant No. 3), Nariman (plaintiff No. 1), Erachsha (plaintiff No. 2) and Bai Dhanbai daughter of Burjorji. This was in 1923.

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