DINESH CHANDRA TIWARI Vs. SHANTI DEVI BISHT

JUDGEMENT

(1.) This second appeal has been filed against the judgment and decree dtd. 8/10/2014 passed by District Judge, Almora in Civil Appeal No.4 of 2013, "Dinesh Chandra Tiwari vs. Smt. Shanti Devi Bisht", whereby the appeal filed by the appellant/defendant has been dismissed and the judgment/decree dtd. 7/3/2011 passed by the Civil Judge (J.D.), Almora has been upheld.

(2.) Counsel for the appellants would submit that the respondent/plaintiff had filed a suit for permanent injunction, mandatory injunction and suit for possession with the averments that the appellants/plaintiff have encroached upon 2.2x4.00 square meter of her land and constructed a room and a staircase to reach the roof of that room in her land No.145; that, the suit was decreed by the trial court by judgment and order dtd. 7/3/2011; that, an appeal was preferred before the District Judge, Almora which was also dismissed vide judgment dtd. 8/10/2014. He would assail the judgment of the trial court and that of the First Appellate Court on the ground that the judgment and decree passed by the trial court was solely depending upon the report of the Bhulekh Nirekshak and that was not filed in original before the trial court, therefore, no judgment could have been passed relying upon a document which was not produced before the trial court in original. He would further submit that Bhulekh Nirekshak Jaganath Joshi was examined as PW3 and has stated in examination-in-chief that he has shown the encroached area in Khasra No.145 in Yellow colour within the red colour, however, in cross examination he stated that he has not mentioned the encroached area in the site plan.

(3.) In light of the above submission, the judgment of the trial court is perused. In this judgment, it is mentioned that the Bhulekh Nirekshak stated that he has shown the encroached area in Khasra No.145 measuring 2.2x4.00 square meter by yellow colour within the boundaries of red colour though in cross examination as quoted in the impugned judgment of the trial court he admitted that he has not mentioned the encroachment in the site plan.