JAINENDRA KUMAR RANKA,J. - (1.) Respondent/plaintiff Babulal, filed a suit for permanent and mandatory injunction against his brother appellant/defendant Nemichand, before the learned trial court in respect of the property in dispute with the averments, inter alia, that their maternal grandmother, namely Anandi, sold the portion of her property mentioned in para 2 of the plaint to the plaintiff and defendant no. 2 Phool Chand through registered sale deed. Plaintiff was in possession of the shop situated at the western corner of the property and the small room constructed over the kothri, which came under the possession of plaintiff and defendant no.2, whereas the upper floor of four shops situated on the eastern side of the property, was free from any construction. Rest of the land which was shown in violet colour in the map annexed along with the plaint, was in possession of said Anandi, who died in the year 1943. It is stated that at that time defendant no.1, Nemichand was aged 9 years and since then he is in possession of the property. Plaintiff is in possession of the portion marked in black colour in the annexed map since 1942, and defendant no.2 Phool Chand is in possession of the portion of the said map coloured in yellow. Chowk, stairs and the door, were being used jointly by the plaintiff and defendant no.2. It is also averred in the plaint that in the chowk, which is of joint use, defendant no.1 raised a platform of 5feet x 15feet, on account of which the plaintiff is facing lot of problems. The property was divided/partitioned mutually. The window and door of the portion which came under the possession of plaintiff and defendant no.2, were opening towards the eastern side since beginning and in the year 1971-72, defendant no.1 Nemichand closed the same by way of raising a hall and room on the upper floor of the four shops. In the year 1981, door which was in use of the plaintiff, was locked by the defendant, whereas defendant was having no right at all to put a lock on the door and demolish the balcony of plaintiff, which exists in the southern side of the room. Nemichand raised construction at the upper floor of the room and shops and in the year 1981 constructed wall without having any right and despite of restraining him from doing so, also opened/constructed a door and two windows towards the roof-side of the plaintiff. Nemichand wanted to construct stairs upon the roof of the plaintiff for which he was having no right at all, and it was prayed that the said wall may be demolished which was constructed by defendant no.1 on the eastern side of room and to remove the raw materials from the chowk, which was causing problems, and also to close the drainage of toilet constructed at the first floor and to remove toilet and bath, and also defendant no.1 be directed to open lock of the door of the room, and prayed for issuance of mandatory and permanent injunction.
(2.) During pendency of the suit, plaintiff Babulal and defendant Nemichand died and their legal heirs were brought on record.
(3.) The appellant/defendant filed written statement, inter alia, with the averments that the chowk, staircase and sadar gate are not included as common portion. Chowk, staircase and sadar gate always remained with Anandi and defendant no.1 became owner of the said property through registered will. Chowk, stairs and gate commonly came to be used by all the parties. It is averred in the written statement that defendant no.1 raised the construction in question in the year 1958 and never raised any construction adjoining to the property of plaintiff whereas the plaintiff himself closed the said windows and the door from inside. The defendant denied the averment in the plaint regarding demolition of balcony and further stated that there is no need for removal of balcony because there is separate stair situated in the chowk for common use, through which defendant no.1 commonly use the said balcony to approach to his balcony because there is no separate way to come at his balcony from inside, and prayed for dismissal of the suit.;