DAVESHWAR PRASAD TIWARI Vs. KLYAN SINGH

JUDGEMENT

(1.) This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the judgment and order dated 9-8-1977, passed by learned District Judge, Pauri Garhwal in civil appeal No. 34 of 1970, and civil appeal No. 37 of 1970, arising out of suit No. 05 of 1967.

(2.) Heard learned counsel for the parties and perused the record.

(3.) Brief facts of the case are that a suit No. 5 of 1967, was filed by the plaintiffs/ appellants against Kalyan Singh (since deceased) for demolition of the disputed construction raised by the said defendant and also for injunction and damages. Plaintiffs/ appellants case is that one Shankar Lal and Jagdish Prasad were original owners of, the plots in suit. A suit was filed in the year 1942 and they got the plots partitioned. Thereafter, defendant purchased a portion of the plot from the aforesaid original owners. Other portion of the plot was purchased by the plaintiffs' father-Salig Ram Tiwari. Land owned by Shankar Lal and Jagdish Prasad, which was transferred to the plaintiffs' father, consisted of plot No. 120/1, area measuring 3/16 nali, plot No. 147/1, area measuring 3/16 nali, plot No. 147/1, area measuring 6/16 nali. Plaintiffs' father got house and shops constructed over plot No. 120/1, which was constructed in the year 1963. The defendant (Kalyan Singh) had his house in plot No. 120/2 on the West of the plaintiffs' house. The defendant got this house constructed in the year 1961-62. Plot No. 147/ 1 was in fact plaintiffs' passage. It is alleged by the plaintiffs that the defendant, while making construction in plot No. 120/2, encroached over some of the plaintiffs' land in plot No. 147/1. Plaintiffs protested to the encroachment. However, the matter was settled amicably by the parties by entering into an agreement dated 24-11-1962. The allegations of the plaintiffs is that on 10-1-1967, in their absence, defendant constructed a wall adjoining to the eastern wall of the kitchen of the plaintiffs and encroached upon the plaintiffs' land. It is further pleaded by the plaintiffs that in doing so, defendant removed the tin sheets of the plaintiffs' kitchen and dispossessed the plaintiffs from their kitchen. It was further pleaded that the passage was consequently blocked by the disputed construction. It is alleged that defendant got constructed their toilet in plot No. 146 and by doing so, they started flowing sewage through the drain oi the plaintiffs in plot No. 120/1. This caused nuisance to the plaintiffs. Plaintiffs therefore, filed a suit for demolition of the room constructed by the defendant and also sought injunction against the defendant apart from the damages to the tune of Rs. 60/-.