- (1.) THIS is a defendants' appeal against the judgement and decree dated 3-12-1968 passed by the Civil Judge, Bijnor reversing the judgement and decree dated 23-11-1967 passed by Munsif, Nagina, in Original Suit No. 551 of 1966.
(2.) PARTIES have their shops in mohalla Kalluganj in the town of Najibabad. Their shops adjoin each other. The shop of the plaintiff-respondent is towards north and the shop of the appellants is just to its south. Both the shops face towards west. A wall 9" in width is between the two shops. The shop of the respondent is a double storeyed one. On the third storey of the respondent's shop there is a wall. The assertion of the respondent was that the intervening wall on the first floor as well as on the second and third floors belonged to him exclusively. The appellants pulled down their shop and in its place constructed a new shop. In doing so they constructed an almirah towards their side in the disputed wall on the ground floor and placed a beam. They also rested their lintel on the said wall. On the third storey/floor the defendants raised a wall and then placed a lintel. On these allegations the respondent claimed injunction. Defence of the appellants was that it was a joint wall of the parties and that they had raised constructions only on half of the wall on their side. The plaintiff-respondent filed two partition deeds - one dated 10-8-1946 Ex. I and another dated 14-5- 1949 Ex. 2. These partition deeds relate to the family of the plaintiff-respondent. The respondent also filed a will Ex. 3 which was executed in favour of Smt. Nirmala Devi, appellant No. 2, wife of appellant No. 1. The parties examined some witnesses in the case.
(3.) THE suit was filed on 5-10-1965 just after the filing of the suit, the respondent got a commission issued to Sri Virendra Kumar, Vakil. THE Commissioner inspected the spot on 7-10-1956 and then submitted his report 15 C along with a map. THE learned Munsif also inspected the site and recorded an inspection note dated 16-10-1957 56 C. On an appraisal of the entire material before him, the learned Munsif found that the wall on the ground floor was joint of the parties, that the wall on the second and third floors (stories) was constructed by the plaintiff-respondent on joint wall and the defendants-appellants had made constructions on these two stories on the wall constructed by the plaintiff-respondent. On these findings he did not consider reasonable to grant injunction to the plaintiff-respondent. As the appellants had made constructions on the second and third stories on the wall of the plaintiff-respondent, he allowed Rs. 200/- as compensation to the respondent.;