NAND RAM AND ORS Vs. SURAJ BHAN

JUDGEMENT

(1.) These Regular Second Appeals under section 100 of the Code of Civil Procedure, 1908 (CPC) are filed by the appellants/defendants in the suit impugning the Judgment of the First Appellate Court dated 25.4.2016 by which the first appellate court has allowed the first appeal by setting aside the Judgment of the Trial Court dated 29.1.2014 as regards issue no. 1, and since issue no. 1 was decided in favour of the respondents/plaintiffs with issue nos. 2 to 4 having already been decided in favour of the respondents/plaintiffs by the trial court, the suit was hence decreed by the first appellate court as a whole in favour of the respondents/plaintiffs by restraining the appellants/defendants from using the disputed gali/private street and removing the iron grill/jaal and staircase made by the appellants/defendants in the subject gali.

(2.) I note that in the Regular Second Appeal No. 320/2016 instead of adding both the plaintiffs Sh. Kanwal Singh and Sh. Suraj Bhan as respondents only Sh. Suraj Bhan has been added as a respondent and the oral request of the counsel for the appellants/defendants is allowed and Sh. Kanwal Singh will also be treated as respondent/plaintiff in this second appeal. Let the amended memo of parties be filed within a week from today.

(3.) The subject suit was filed by the respondents/plaintiffs along with their mother Smt. Nahar Kaur/plaintiff no. 1, who has since expired, and therefore, there remained only two plaintiffs in the suit, and who are the respondents in this second appeal. In the subject suit for injunction the respondents/plaintiffs claimed injunction against the appellants/defendants from in any manner using or constructing upon the disputed land/gali shown with the letters EFGH in the site plan annexed to the plaint. Respondents/plaintiffs also sought the relief that an iron jaal/mesh/grill which was put up by the appellants/defendants in the gali on 13.1.2003 be directed to be removed. The trial court granted only this latter prayer, because the trial court held issue no. 1 against the respondents/plaintiffs thereby holding that the gali in question was commonly owned by the appellants/defendants and the respondents/plaintiffs, and therefore no construction could be made in the nature of a staircase or iron grill/mesh in the subject gali by the appellants/defendants. Two appeals were therefore filed against the Judgment of the Trial Court dated 29.1.2014. One appeal was filed by the respondents/plaintiffs against the finding on issue no. 1 holding that the disputed gali was commonly owned and not exclusively owned by the respondents/plaintiffs, and thus in the first appeal the respondents/plaintiffs sought setting aside of the finding on issue no. 1 and for holding that only the respondents/plaintiffs had the exclusive ownership right to the disputed land/gali. Appellants/defendants also filed an appeal against the Judgment of the Trial Court dated 29.1.2014 as the trial court had found issue nos. 2 to 4 against the appellants/defendants and had directed the appellants/defendants to remove the iron jaal/mesh/grill and staircase which was fixed by the appellants/defendants in the gali, and which direction was given because it was held that the gali was common and no one had a right to make any construction on the same which would affect the right of the other co-owners/plaintiffs to use the gali unhindered. Both the appeals have been disposed of by the First Appellate Court vide the impugned Judgment dated 25.4.2016 by accepting the appeal of the respondents/plaintiffs and dismissing the appeal of the appellants/defendants, hence this Regular Second Appeal under section 100 CPC by the appellants/defendants.