VIDHYA DEVI Vs. SHER BAHADUR THAPA

JUDGEMENT

(1.) Present second appeal is filed against the judgment and decree dtd. 22/1/2011 passed by Additional District Judge/VI F.T.C. Dehradun in Civil Appeal No.57 of 2006 'Sultan Singh vs. Sher Bahadur Thapa and another', whereby the judgment and decree dtd. 24/5/2006 passed by 2nd Additional Civil Judge (J.D.), Dehradun dismissing the suit of the appellant/plaintiff, has been upheld.

(2.) In brief, facts of the case are that the plaintiff Sultan Singh (predecessors-in-interest of the appellants) filed a suit seeking a decree of declaration against the respondents/defendants, thereby praying that the wall raised by respondents/defendants be demolished. In the plaint, it was stated by the plaintiff that he is the owner in possession of Property No.74, Gandhi Nagar, Ballupur Road, Dehradun; that, in eastern side of the suit property, at one part there is a road (Street No.3, Rajendra Nagar) and in another part there situates property of defendant no.1; that, in the northern side of the suit property, the property of respondent no.2/defendant no.2 is situated; that, the plaintiff is residing in the house since 1979 while the respondents/defendants constructed their houses in the year 1982-83 and1995, respectively and started residing there since then; that, the plaintiffs are using the road situated towards eastern side of their house from the very inception; that the defendants are relatives and since the date the respondent no.2/defendant has constructed the house the respondents/defendants are obstructing in using the said road; that, all the roads of Rajendra Nagar Colony are public road and are maintained by Nagar Palika Parishad, Dehradun; that, in the year 1995 and 1997 the same dispute had arisen wherefor the plaintiff had made a complaint to S.D.M Dehradun, however, it was amicably settled at that time; that, thereafter again the defendants raised dispute regarding use of public road by the plaintiff whereupon the plaintiff again made a complaint to S.D.M., Dehradun on which an enquiry was conducted and it was found that the respondents/defendants have constructed a wall in front of the suit property and are trying to obstruct way of plaintiff whereafter the S.D.M. Dehradun directed the respondents/defendants not to raise any construction at the spot; that, even after that on 9/10/9/1998 the respondents/defendants raised a wall of 5 ft. height and obstructed the use of public path without any authority of law.

(3.) The respondents/defendants contested the suit and filed a joint written statement denying the plaint averments. In the written statement, they specifically denied existence of any public road in the east side of the property of the plaintiff and stated that the plaintiffs have no right to go through the defendants' property which is about 10 ft. above his property. In additional plea, in para 24 they pleaded that due to geographical conditions there is a difference of height in the properties of the plaintiff and defendants; that, there exists Pusta of defendants in the east side of the suit property and that there is no road i.e. Street No.3 Rajendra Nagar touching any of the boundary of the property of the plaintiff.