R.L.GUPTA, J. - (1.) THIS D.B. Civil Special Appeal has been preferred by the defendant Poonamchand under Section 18(2) of the Rajasthan High Court Ordinance 1949 against the judgment and decree of the learned Single Judge of this Court dated March 26, 1971.
(2.) THE plaintiff Roopchand, now dead, represented by the present respondents Nos. 1 to 5 filed a suit for partition of the joint party -wall and also for injunction in the court of Munsif Abu, who decreed the suit of the plaintiff on 3.3.1964 and it was confirmed in appeal by the Civil Judge, Sirohi, by his judgment dated 31st August, 1964. The defendant -appellant preferred a second appeal to this Court. That appeal was dismissed with costs by the learned Single Judge and the decree passed by the court below in favour of the respondents was affirmed. Aggrieved by the judgment and decree of the learned Single Judge, this special appeal has been preferred by the defendant -appellant. The relevant fact of the case, in brief, are that Roopchand was the brother of Poonamchand appellant. Poonamchand and Roopchand owned houses adjacant to each other in village Rohira which were separated by a common party -wall. It was averred that in Samvat 2009, Roopchand raised the height of the party -wall alleging his exclusive owner -ship over it. The appellant Poonamchand filed a suit against Roopchand claiming the party wall to be a common wall and prayed for mandatory injunction directing Roopchand to demolish the party -wall to the extent the height was raised beyond the second story and directing the close of the 'alas' and almirahs and to restore it in the condition in which it stood before. The litigation between the parties ended by a decision of this Court dated 27th July, 1961, and it was held by this Court that the wall which is the bone of the contention between the parties was not exclusively of the plaintiff but was the joint wall of the parties and it was not open to the owner of a joint wall 10 raise its height or otherwise deprive the other co -owner of the use of it without the latter's consent whether express or implied and where such an unauthorised interference is established a cause does arise for the grant of a mandatory injunction within the meaning of Section 55 of the Specific Relief Act. The court granted a mandatory injunction directing Roopchand to remove the potion of the wall in dispute which he had built in the third story beyond the height of 2 feet from the terrace therein and also granted a perpetual injunction restraining him from building on the common wall without the consent of the plaintiff. It is said that the execution of that decree is going on and the proceedings are being stayed by this Court in some other appeal.
(3.) SUBSEQUENT to the decree passed in the above mentioned suit, Roopchand filed a suit for partition of the party wall and claimed that the wall be partitioned by metes and bounds and exclusive possession of the parties over the wall be demarcated; in the alternative the perpetual injunction restraining the defendant -appellant from obstructing the plaintiff from making the construction over the wall and taking support over it be granted so as to make use of the wall. This suit was opposed by the appellant. He claimed that the party -wall is his exclusive property and also pleaded that the suit was barred under the principles of res -judicata in view of the judgment in the former suit mentioned above. This suit for partition of the party wall was decreed by the courts below and that decree was affirmed by this Court in second appeal by the learned Single Judge.;