KRIPAL SINGH Vs. KAILASH CHANDRA PANDEY

JUDGEMENT

(1.) THIS second appeal, under Section 100/103 of the Code of Civil Procedure, 1908, has been preferred against the judgment and decree dated 30th November, 2009 passed by District Judge, Almora in Civil Appeal No. 10 of 2008 as well as the judgment and decree dated 14th December, 2007 passed by Civil Judge (Jr. Div.), Almora in Civil Suit No. 25 of 2003.

(2.) PRECISELY , facts of the case are that Plaintiff/ Respondent (Kailash Chandra Pandey) instituted Civil Suit No. 25 of 2003 before Civil Judge (Jr. Div.) Almora seeking permanent and mandatory injunction against the Defendant/Appellant (Kripal Singh) restraining him from interfering in the road over the Khata No. 835, village -Pandey khola, District -Almora and also for direction to Defendant/Appellant to remove the construction shown in the map annexed with the plaint. It was asserted in the plaint that Plaintiff is co -owner of land measuring 13 Mutthi pertaining to Khatauni Khata No. 65 -K. Pai. Khet No. 837 at village Pandey khola, Patti Khasparja, Tehsil and District Almora through registered deed. He constructed a 2 residential house on the said land. Tenure holder of the land, namely, Mohan Chandra Tewari executed a registered Badalnama (exchange deed) with the Defendant/Appellant on 20.09.2000 for approaching the land and houses of co -tenure holders at the site of their land/houses. By way of said Badalnama, Defendant/ Appellant was given half Mutthi land from Khet No. 838 and in execution of said exchange deed, the Defendant left half Mutthi land in Khet No. 835 for public path in between his house and house of Gokul Singh. One of the conditions in the exchange deed was that the Defendant/ Appellant shall not create any hindrance on the pathway or encroach upon it by making any construction and shall keep open the public path so that co -tenure holders may avail their right to easement. It is stated in the plaint that Plaintiff/Respondent, Defendant/Appellant and Gokul Singh were using the said path. It has been alleged in the plaint that the Defendant/Appellant has encroached upon the said path by constructing a lintel of size 2' in width and 12' in length and has constructed a toilet under the said lintel. The Defendant/Appellant contested the suit by filing his written statement. Rescinding the assertion made in the plaint, the Defendant/Appellant, in his written statement, has stated that he purchased 4 Mutthi land in Khatauni Khata No. 65 K. Pai No. 835 and 71/4 Mutthi land in Khata No. 837 totaling 111/4 Mutthi land in the year 1999 at village -Pandeykhola, Patti Khasparja, Tehsil and District Almora in which he constructed a residential house in the year 1999 -2000 and laid lintel over one storey and built lintel/projection and at that very time he constructed toilet and soak pit and also a path. On the basis of the pleadings, the trial Court framed four issues. The parties adduced their oral and documentary evidence 3 before the trial Court. After hearing learned Counsel for the parties the trial Court vide impugned judgment and order dated 14th December, 2007 partly allowed the suit of the Plaintiff whereby the Defendant was restrained by way of a decree of permanent and mandatory injunction from interfering in the pathway over Khata No. 65, Khet No. 835, village Pandeykhola, District -Almora. The Defendant was further directed to remove the lintel measuring 2 x 12 feet over the road. Being aggrieved with the judgment and order of trial Court, the Defendant preferred Civil Appeal No. 10 of 2008 and the 1st Appellate Court vide judgment and order dated 30th November, 2009 dismissed his appeal.

(3.) LEARNED Counsel for the Defendant/Appellant has submitted that the Appellant had purchased 4 Mutthi land pertaining to Khatauni Khata No. 65 K. Pai No. 835 and 7 Mutthi land relating to Khata No. 837 totaling 11 Mutthi land in the year 1999 at village -Pandeykhola, Patti Khasparja, Tehsil and District Almora in which he constructed a residential house and laid lintel over one storey and at that very time, he constructed toilet and soak pit as also a path. Since, in the month of September, 2003 the Appellant constructed double storeyed house over previous structure, the Respondent had no cause of action, de novo, after three years. He submitted that it is clearly mentioned in the exchange deed that construction made below the path shall be retained. He submitted that 4 all the constructions are legally done by the Defendant on his own land, to which the Plaintiff has no concern. It is further argued that before execution of exchange deed, a lintel projection measuring 19'x3" in length and 2.30' in width was in existence at the site which was erected on the cement columns. The said lintel projection cannot be said to be erected on the pathway nor it can be said to be a construction hindering the pathway, as the said construction is not creating any obstacle to its user. In so far the plea raised by the learned Counsel for the Plaintiff/Respondent that burden of proof cannot be shifted upon the Plaintiff/Respondent, the learned Counsel for the Defendant/Appellant entrusted reliance on the judgment of Hon'ble Supreme Court, rendered in Neelakantan and Ors. v. Mallika Begum, reported in, 2002 (1) Supreme 369 whereby it was held that onus is upon the Plaintiff/tenant to prove that property in question which was subject matter in that case. He relied upon part of paragraph -8 of the judgment, which is being reproduced here: