GARG, J. - (1.) HEARD at admission stage.
(2.) IN this second appeal, the following findings of facts were- recorded by the learned Civil Judge (SD), Jalore through judgment and decree dated 8. 5. 1997 in civil original suit No. 4/95 and the same were upheld by the learned District Judge, Jalore through judgment and decree dated 12. 12. 2003 in appeal No. 28/97:- (i) That disputed wall marked K to L in site plan Ex. 1 is a joint property between the plaintiffs-appellants and defendants- respondents. (ii) That since it is a joint property, therefore, plaintiffs-appellants had a right to seek partition of the disputed joint wall. (iii) That since the disputed wall is very old one and is in a dilapidated condition, therefore, it was not possible to make division of that wall by metes and bounds and practically also that cannot be divided between two. (iv) That so far as comparative need of the disputed joint wall between the parties was concerned, there was no need now for the plaintiffs-appellants and need of the defendants-respondents for the disputed joint wall was found more and thus, plaintiffs- appellants should be compensated by a reasonable compensation and the learned Civil Judge has assessed valuation of the disputed wall at Rs. 10,000/- and the plaintiffs-appellants would be entitled to get half of that amount i. e. Rs. 5000/- from the defendants-respondents. However, on the point of compensation, the learned first appellate court remanded the matter to the learned Civil Judge. Out of the above findings, the findings No. (iii) and (iv) have been challenged by appellants-plaintiffs in this second appeal. It arises in the following circumstances: One Pukhraj, who died during pendency of the suit, filed a suit before the lower court for permanent injunction and partition of disputed joint wall marked K to L in the site plan Ex. 1 and it was further prayed that possession of half wall be given to the plaintiffs-appellants. A written statement was filed by the defendants-respondents and their case was that no doubt disputed wall was a joint property, but practically its division was not possible. Hence, it was prayed that the suit be dismissed. On the pleadings of the parties, the learned Civil Judge framed four issues and after recording evidence and after hearing both the parties, the learned Civil Judge (SD), Jalore through judgment and decree dated 8. 5. 1997 gave the findings, which have been mentioned above. Aggrieved from the said judgment and decree dated 8. 5. 1997 passed by the learned Civil Judge (SD), Jalore, the appellants- plaintiffs preferred first appeal being No. 28/1997 before the learned District Judge, Jalore and the learned District Judge through judgment and decree dated 12. 12. 2003 upheld the findings recorded by the learned Civil Judge, but on point of compensation, the learned District Judge was not satisfied with the findings of learned Civil Judge and thus, remanded the case back to the learned Civil Judge with the directions that valuation of disputed joint wall be first assessed after giving opportunity of hearing to both the parties and the parties were directed to appear before the learned Civil Judge on 22. 1. 2004, meaning thereby learned District Judge was not satisfied with the award of compensation of Rs. 5000/- to the plaintiffs-appellants, though he was satisfied on the point that compensation should be awarded to the plaintiffs-appellants as division of the disputed joint wall as not practically possible. Aggrieved from the said judgment and decree dated 12. 12. 2003 passed by the learned District Judge, Jalore, this second appeal has been filed by the plaintiffs-appellants. In this second appeal, the learned counsel for the plaintiffs-appellants has challenged the findings No. (iii) and (iv) recorded by the courts below, which have been mentioned above. He has placed reliance on the following two decisions of this Court:- (i) Poonam Chand vs. Shahveer Chand & Ors. (1), (ii) Shah Poonamchand vs. Veerchand & Ors. On the other hand, it has been submitted by the learned counsel for the defendants-respondents that since there are concurrent findings of facts recorded by the courts below and they do not suffer from any basic infirmity or illegality, therefore, they should not be disturbed in second appeal. Apart form this, legal position as is found in R. Ramaprasada Rao vs. R. Subharamaiah & Ors. (3), and Badri Narain Prasad Choudhary & Ors. vs. Nil Ratan Sarkar (4), supports the view taken by the courts below. I have heard the learned counsel for the appellants- plaintiffs and the learned counsel for the defendants-respondents and gone through the materials available on record.
(3.) THERE is no dispute on the point that the disputed wall was a joint property between the parties. There is also no dispute on the point that while deciding issue No. 2a, the learned Civil Judge gave a specific finding that since the disputed wall was a joint property, therefore, plaintiffs-appellants had a right to get partition of the disputed joint wall. There is also no dispute on the point that while deciding issue No. 2, the learned Civil Judge came to the conclusion that the partition of the disputed joint wall was not practicable and he also came to the conclusion that need of the defendants- respondents for the disputed wall was more as compared to plaintiffs-appellants, therefore, he awarded compensation of Rs. 5000/- to the plaintiffs-appellants for the ownership of the disputed joint wall. ;