1. This appeal under section 100 of the Code of Civil Procedure is at the instance of original defendant against whom, as well as against respondent No.3 herein, Regular Civil Suit No. 140 of 1980 was filed by respondent No.1 and 2 herein for declaration and permanent injunction.
2. It was the case of the plaintiffs in the suit that the plaintiffs have constructed wall on their property and though the defendants had no right to make any construction on the wall of the plaintiffs, they attempted to make construction illegally on the wall which was in existence,that the defendant had no right to make construction on the said wall of exclusive ownership of the plaintiff, therefore, suit was required to be filed seeking declaration that the defendants have got no such right to make construction on the wall of the plaintiffs and for permanent injunction restraining the defendants from carrying out any construction on the wall of the plaintiffs.
3. The suit was resisted by the defendants by filing written statement and it was stated in the written statement that the wall in question was of common ownership of both the parties and since the properties of the defendants are situated on the northern side and since the plaintiffs had made construction of first floor which amounted to disturbing privacy of the defendants and since the plaintiffs had not stopped their activity of making construction beyond the height of the wall in question, the defendants had to raise the height of the wall and for that purpose, construction on the existing wall was required and therefore the defendants were entitled to make construction on the wall so as to raise height of the wall and, therefore, the plaintiffs have no right to prevent the defendants by filing the suit.
4. The learned trial Judge on appreciation of the evidence, especially the documents at Exh. 75, 76 and 77, came to the conclusion that the properties held by the plaintiffs were constructed prior in time than the construction of the property made by forefathers of the defendants and the defendants have already demolished old construction of the property and had put up new construction in the property and therefore cannot claim to have any common ownership to the wall constructed by the plaintiff. Learned Trial Judge accordingly decreed the suit of the plaintiffs by declaring that the defendants had no right to make construction for raising wall which is situated on the northern side facing east and west of the property bearing Tika No. 7 Paiki No. 118 and 119 situated in Fulvadi.
5. Defendants unsuccessfully carried the matter further by filing Regular Civil Appeal No. 90of 1985. The learned appellate Judge on independent appreciation of the evidence and construction of the documentary evidence available on record, came to the conclusion that as per the evidence of the witness of the defendant himself, property mentioned in the documents at Exh. 75, 76 and 77 were not in existence and new construction have come up in place of the old properties mentioned in the said document. The learned Judge also considered the evidence of the said witness and observed that the properties of the plaintiffs were in existence prior to the properties of the defendant which was mentioned in the above said three documents and thus properties of the defendants were not in their original form as mentioned in Exh. 75, 76 and 77, therefore, it could not be believed that the original properties continued to have common wall but it could be believed that the original construction of the said property was already demolished and new construction has already come and, therefore, defendant could not claim right to the wall on the property of the plaintiffs which was in existence even prior to the old properties of the defendants. The learned appellate Judge recorded finding that the disputed wall was constructed before construction of the house of the defendant and, therefore, it could not be believed that there was common right available to the defendant in respect of the disputed wall. Ultimately, the learned appellate Judge on the basis of such appreciation of the evidence available on record, found no substance in the appeal and dismissed the same vide judgment and decree dated 23.3.1995. It is this judgment and decree which is under challenge in this appeal before this Court.
6. This appeal was admitted on the following two substantial questions of law:
“1. Whether the Courts below have erred in admitting into evidence and exhibiting documents at Exhibits 75, 76 and 77?
2. Whether the Courts below were right in interpreting the said two documents so as to hold that the disputed wall was of the full ownership of the plaintiff?”
7. The substantial question of law raised above in fact is mainly to the effect as to whether on interpretation of documents at Exh. 75, 76 and 77, could it be said that there was absolute right of the plaintiffs to the disputed wall?
8. Since the first question was though in respect of admitting the documents Exh. 75, 76 and 77 and could be read in evidence, the same could be examined in the context of the evidence of the witnesses examined by the parties.
9. At this stage, it is required to be noted that the defendant examined himself at Exh. 74 and Jenbai Latif Pothiawala at Exh. 70. In the evidence of these very witnesses, contents of documents Exh. 75, 76 and 77 were relied and it was sought to be contended before the Court below that by virtue of such documents, defendants had acquired right to disputed wall. Now on the construction of these documents in the context of the evidence of witnesses examined by the defendants, if the courts below found that the original properties mentioned in documents Exh. 75, 76 and 77 did not remain and properties of the plaintiffs were constructed prior in time than the old properties mentioned in Exh. 75, 76 and 77, then the very nature of the subsequent demolition of old properties of defendants, claim of defendant to disputed wall of the property which was stated to have been in existence prior to properties of the defendants would not survive as the defendants themselves have put up new construction in place of old properties, therefore, they had independently made use of the space which was originally in existence covered by the old properties.
10. Even apart from the above appreciation of evidence of both the courts below, one more aspect of the matter which is required to be considered is that the resistance on the part of the defendants, the claim on the part of the defendants to put up more construction on the disputed wall so as to raise its height was only because the defendants wanted to secure their privacy for their family members because of putting up of new construction by the plaintiffs above existing construction of their property. Meaning thereby, with rise in the existing construction over the properties of the plaintiff at the ground floor level, height of the disputed wall was not being raised by the plaintiff and thereby defendants wanted to see that the height of the disputed wall is raised so as to prevent the plaintiffs to defeat right of privacy of the defendants. But such can hardly be a ground for defendants to claim that they have common right with the plaintiffs of use of disputed wall and to put up construction thereon.
11. Since both the courts below have found in the matter of appreciation of evidence that the disputed wall was of the sole ownership of the plaintiffs and the defendants have got no right to such disputed wall, in my view, documents at Exh. 75, 76 and 77 were admitted in evidence, same being referred to and relied on by both the witnesses of the defendants themselves, would not vitiate the ultimate decision of the courts below. Under the circumstances, disputed wall being held tobe of the ownership of the plaintiffs on the basis of the evidence, being finding of fact recorded by both the courts below, I do not find any error. Accordingly this appeal is required to be dismissed. Hence this appeal is dismissed.
(C.L. Soni,J.) an vyas