SHAHZADI BEGUM Vs. MOHAMMED YUSUF KHAN

JUDGEMENT

(1.) This second appeal preferred by the appellant / plaintiff was admitted for hearing on the following substantial question of law: -­ "Whether both the Courts below have erred in considering demarcation report (Ex.D.4) and in not considering sale deeds (Ex.P.2, Ex.P.11, Ex.P.13 and Ex.D.5) in its proper perspective while holding, the plaintiff failed to prove existence of public road and thereby dismissing the plaintiff's suit?"

(2.) The plaintiff filed suit only for mandatory injunction under Section 39 of the Specific Relief Act, 1963 stating inter alia that she has purchased the land from one Sardar Harbhajan Singh on 17-­2-­ 1983 and constructed a house ad-­measuring 30 ft. x 44 ft. shown in the map attached with the plaint as A, B, C, D and on northern side of her house, there is 10 ft. public road shown as Ka, Kha, Ga, Da and on that side, plot of the defendant is also situated. It was further pleaded that on 15-­3-­ 1999, the defendant has started construction on public road and has also collected stones, muroom, etc., and as such, the defendant be restrained from making construction and the construction already made be removed by issuing mandatory injunction which was opposed by the defendant by filing written statement stating that there is no public road existing and he is making construction on his own land.

(3.) The trial Court after appreciating oral and documentary evidence on record has held that the plaintiff has failed to prove the existence of 10 ft. public road on the northern side of her house and the defendant has made construction on his own land which is a part of Khasra No.329/11, area 11 decimals, and dismissed the suit. On appeal being preferred, the first appellate Court concurred with the findings of the trial Court and dismissed the appeal leading to filing of second appeal under Section 100 of the CPC in which substantial question of law has been framed which has been set-­ out in the opening paragraph of this judgment.