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1980 DIGILAW 212 (ALL)

Krishna Swarup v. Shyamawati

1980-02-13

DEOKI NANDAN

body1980
JUDGMENT Deoki Nandan, J. - This is a defendants second appeal in a suit for injunction. 2. The parties were the joint owners of a house. There was a partition between them by a registered deed of partition dated 4th May 1933. The main door of the house was towards east. It was approachable through a Dehliz. The Dehliz was left joint between the parties. The Sahan, on the eastern side, was also left joint. The plaintiff wanted to raise a wall cutting across the Dehliz and the Sahan in a straight-line along the alignment of the partition of the house between the parties. The result of the raising of the wall through the Dehliz would be to prevent the defendant from having egress from and ingress to his portion of the house through the said main-door and the Sahan. The defendant accordingly prevented the plaintiff from raising that wall. The plaintiff prayed for an injunction restraining the defendant from obstructing the plaintiff in raising the wall. Substantially the question in issue between the parties was whether the plaintiff was entitled to raise the wall. The subsidiary issue raised was whether the defendant had acquired a right of easement by prescription for egress and ingress, in respect of the Sahan and the door of the house, the trial court found in favour of the plaintiff on both the issues and decreed the suit. The lower appellate court confirmed the decree. Hence the second appeal. 3. Mr. G.N. Verma learned counsel for the appellant, urged that the Dehliz and the Sahan had been left joint while the rest of the house had been divided between the parties. One of the objects of leaving the Dehliz and Sahan joint, was to allow access to both the parties from the main-door of the house which lay towards the east. There was no question of acquiring the right of easement in the circumstances. The Dehliz and Sahanibad not been divided. Both the parties have equal rights to pass and repass from and into their respective portions of the house through the door in the Dehliz and the Sahan. So long as the Dehliz and Sahan are not partitioned by agreement between the parties, the passage agreed to between the parties at the earlier partition must continue. 4. Both the parties have equal rights to pass and repass from and into their respective portions of the house through the door in the Dehliz and the Sahan. So long as the Dehliz and Sahan are not partitioned by agreement between the parties, the passage agreed to between the parties at the earlier partition must continue. 4. Having heard the learned counsel for the parties, it appears that the lower court is not right in its view that the defendant did not have a right to pass and re-pass through the Dehliz and Sahan to his portion of the house in suit. It may be that it is no longer necessary for the parties to keep the Dehliz and Sahan joint, but so long as the parties do not choose to divide them, whether by mutual agreement or by suit, they continue to be joint, and neither party can prevent the other from passing and repassing through the Sahan by raising a wall or by other means. 5. In the result, the appeal is allowed. The judgment and decree, under appeal are set aside and the plaintiff's suit shall stand dismissed. But in the circumstances, there will be no order as to costs.