SURESH KHIYANI Vs. JASSI APARTMENT WELFARE SOCIETY

JUDGEMENT

(1.) Heard learned counsel for the appellant and Sri Ashish Kumar Srivastava, learned counsel for the respondent.

(2.) Present appeal has been filed for setting aside the judgment and decree dated 4.11.2019 passed by Additional District Judge, Court No. 23, Kanpur Nagar in Civil Appeal No. 33 of 2019 (Jassi Apartments Welfare Society vs. Suresh Khiyani) arising out of O.S. No.1079 of 2011 (Jassi Apartments Welfare Society vs. Suresh Khiyani), which was dismissed by the trial court vide judgment dated 11.02.2019.

(3.) The plaintiff-respondent filed a suit for permanent prohibitory injunction as well as mandatory injunction for removal of the constructions raised during pendency of the suit. The suit was filed on the ground that Flat No. 102 was purchased by the defendant alongwith common space, which was encroached upon by him alongwith his wife during pendency of the suit on 25.1.2014 and the open common parking area was surrounded by a wall for personal use and illegally encroached upon by his wife Smt. Arti Khiyani and his son Rishi Khiyani. The suit was contested by the defendant and denying the plaint allegations it was pointed out that Flat No. 102 was purchased in the name of Smt. Arti Khiyani through registered sale deed dated 9.12.2010 and as such she is a necessary party to the suit and therefore, the suit is bad for non-joinder of parties. It was alleged that the area in dispute is not a common passage and the same is under the ownership of Smt. Arti Khiyani. The same is not for common use of the residents. The suit was dismissed by the trial court vide judgment dated 11.2.2019 holding that it is not proved from the documentary evidence that it was a common parking place. It was further found that PW-1 and PW-2 through their oral evidence though supported the plaint case, however, their statement does not inspire confidence and on this ground the issue no. 1 as to whether the plaintiff is entitled for mandatory injunction was decided against the plaintiff and ultimately the suit was also dismissed. Issue no. 4 as to whether the court has jurisdiction to hear the suit; issue no. 5 as to whether the suit is barred by Order 7 Rule 11 CPC; and issue no. 6 as to whether the suit is barred by Section 41 of the Specific Relief Act, 1963 were decided against the respondents.