(1.) B. C. Kandpa, J. This Second Appeal has been pre ferred against the judgment and order/ decree dated 20. 6. 2002 passed by the. District Judge, Nainital in Civil Appeal No. 27 of 2000, Govind Ballabh Tewari & another Vs. Vinod Krishna Tewari and others arising out of judgment and de cree dated 27. 06. 2000 passed by Addi tional Civil Judge (S. D.), Nainital in Civil Suit No. 103 of 1994 between Pitamber Dutt Tiwari Vs Govind Ballabh Tewari & another.
(2.) BRIEF facts of the case are that a suit was filed by Pitamber Tiwari, father of respondents no. 1 to 5, against the defendants / appellants and the Nagar Palika, respondent no. 6 for demolition of the disputed construction and injunc tion with the allegations that Pitambar Dutt Tewari, original plaintiff, was the owner of the house and land in question shown in the plaint map by letters 'a' 'b' 'c' and 'd' situated in Stone Leigh Compound Nainital, which he purchased from one Safdar Ali Khan vide registered sale-deed, dated 5. 1. 1982. Even from the period prior to purchase the plain tiff was in possession of the house as a tenant in the house purchased by him. The house and land purchased by the plaintiff is surrounded by 6 feet wide Rasta land. The defendants-appellants have purchased a plot adjoining to that of the plaintiff but they have encroached upon the land shown in the plaint map near northern corner of the house of the plaintiff in the area measuring 20' 6" x 8' 6" and thereby they have also ob structed the 6 feet wide road on the northern side of the plaintiff's house: It is alleged in the plaint that the encroach ment was made on 15. 5. 1994 by the de fendants / appellants and even after being asked they did not stop it, hence the suit for demolition of the disputed construction and injunction to restrain the defendants was instituted by the plaintiffs.
(3.) THE learned trial Court decided issue no. 4 in negative as a preliminary issue vide judgment and decree dated 7. 4. 1997 and after recording evidence of the parties and hearing them, decreed the suit for removal of the disputed con structions raised by the defendants. Ag grieved by the same, defendants no. 1 and 2 have preferred the appeal before the lower Appellate Court.