BALIA, J. - (1.) THIS second appeal is directed against the judgment and decree dated March 30, 1977 passed by the Civil Judge, Udaipur in Civil Appeals No. 29 of 1973 and 21 of 1973 dismissing the suit for injunction reversing the judgment and decree passed by the Additional Munsif and Judicial Magistrate, No. 2, Udaipur on December 18, 1972 in Civil Original Suit No. 1 of 1971.
(2.) THE facts in brief are that House No. 221 in Ward No. 9 situated at Udaipur was an ancestral property of plaintiff-appellant Padam Singh and the defendants Bakhtawar Lal son of Gopal Lal and Shanti Lal son of Bakhtawar Lal. On a partition, the ground floor became the property of defendants and the upper storey consisting of first floor and second floor became the property of plaintiff Padam Singh. As a result of this partition of one property, plaintiff became entitled to verticle support of walls of building on ground floor. It appears that the building was in dilapidated condition, there was a notice from the Municipal Council, Udaipur for demolishing of the house. As a result of which the first and second floors belonging to the plaintiffs were demolished, according to plaintiffs in 1950 and according to defendants in 1947. The ground floor, though had not been demolished but has also been stated to be in dilapidated condition and is not sufficiently strong enough to give support to the reconstruction of the upper storeys which the plaintiff wants to make. While the rooms A and B shown in Ex. 5 site-plan annexed with plaint is admitted to exist, it is alleged by the defendant that roofs of ovri and padsal also fell down after demolition of storeys belonging to plaintiffs somewhere in 1950. Plaintiff claims that roofs etc. have been constructed in 1961. The plaintiff demanded of defendants to repair and reconstruct the ground floor so that he can make reconstruction on his portion of his house. Having failed to get response from the defendants, he has filed the suit for permanent injunction against the defendants that they may be directed to construct ground floor or allow the plaintiff to construct it and to recover the costs of such construction of the defendants and if the plaintiff is not permitted to construct the ground floor, such construction may be made through Public Works Department at the costs of the defendants. Prayer for special costs was also made. The defendants admitted that the property was of the joint property of the parties and that first and second floor belongs to the plaintiff whereas ground floor belonged to the defendants. However, they further claim that since 1948 first floor and second floor did not exist and therefore, plaintiff has lost his right of easement of verticle support from the ground floor building belonging to the defendants and therefore, he is now not entitled to reconstruct the first and second floor after a lapse of 20 years. Nor the plaintiff can seek a mandatory injunction that defendants reconstruct the part of their first floor which has fallen down. It is not disputed that the remaining construction of the ground floor is also not in good condition. The defendants claimed the dismissal of the plaintiff's suit. The trial court framed the following issues: ****** On Issue No. 1, the trial court found that the first and second floor existed on the disputed building prior to year 1947 and so long as these storeys are reconstructed within 20 years after their demolishing, the plaintiff has got a right of support from the ground floor.
(3.) ON Issue No. 2, it was held that the plaintiff has got right of vertical support from the servient heritage as an easement of necessity. Therefore, its existence does not depend on the prescriptive period of 20 years. On Issue No. 3, it was held that the right of support was not completely extinguish but was merely suspended and the plaintiff has got a right to revive it by reconstruction and this right he had got only on the two rooms shown as A & B in site-plan Ex. 5 and not on the ovri and padsal shown as C & D in Ex. 5 because they have got no roof and no walls and are in the shape of a platform. Issue No. 4 was decided against the defendant. It was held that present case falls under S. 45 of the Easement Act and the rights could be revived within 20 years under S. 51 of the said Act. ;