B.D.Singh, J. - (1.)This appeal under Section 100 of the Code of Civil Procedure by Chela Mery and Agnes, who were Defendants First Party in the trial court, is directed against the judgment and decree of the learned Additional Subordinate Judge in Title Appeal No. 107/2 of 1963/70, whereby he reversed the judgment and decree of the trial court.
(2.)In order to appreciate the points of law involved in this appeal, it will be necessary to briefly state some material facts. One Shaikh Lal Mohammad was the owner of Survey Plots Nos. 327 and 328 of Khata No. 130, situated in Mohalla Aggarwal in the Town of Motihari. Shaikh Lal Mohammad had constructed three houses on the aforesaid land separately, but attached to one another. On his death, his son Shaikh Abdul Rab (defendants second party), came in possession of the three houses, bearing Holding Nos. 115, 116 and 117 of the Motihari Municipality, On the 5th October, 1939, Shaikh Abdul Rab sold the house on Holding No. 115 to Bibi Khatoon, who was plaintiff respondent first party in this Court On the 15th September, 195,0, by a registered deed (Ext. A), Shaikh Abdul Rab, namely, respondent No. 2, sold the remaining two houses on Holding Nos. 116 and 117 to the appellants. The said sale under Exhibit A was only in the name of Appellant No. 2, Agnes, daughter of appellant No. 1. Subsequently, a suit had to be instituted by Bibi Khatoon, impleading the appellants as defendants first party and Shaikh Abdul Rab as defendant second party. In the suit, she sought for a declaration that the lands described in Schedule I of the plaint are the common walls and both parties had got the right only to repair them and that they had no right either to raise the walls or to put any pucca roof on the same. It was further prayed that the defendants first party be restrained from further raising the walls and making any construction over the same.
(3.)The suit was mainly contested by defendants first party. On the pleadings of the parties, as many as six issues were framed. Out of them. Issues Nos. 3 and 5 are important for the purpose of this appeal. The said Issues Nos. 3 and 5 read as follows:-- "3. Whether the wall described under Schedule I of the plaint is a common wall as alleged by the plaintiff?" "5. What are the respective rights of the parties, if there be any, with respect to the wall as described in Schedule I of the plaint?"