VIPIN KUMAR Vs. SAROJANI

JUDGEMENT

(1.) BEING aggrieved by the judgment of remand dated 21-12-2010 passed by the First Additional District Judge, Sagar in Civil Appeal No. 8- A/2010, this appeal under Order 43, Rule l(u) of the Code of Civil Procedure has been preferred by the defendants.

(2.) IT is not in dispute that the plaintiff was having Plot No. 7, Block No. 57 in Civil lines, Sagar. In the northern side thereof there is a culvert and in southern side 10 feet road is there. It is also not in dispute that defendants are lease holder of 750 sq. ft. of land on which his old house is situated. It is also not in dispute that defendants want to raise construction on the said plot after seeking permission from the Municipal Corporation. It is said in plaint that Plot No. 7, Block No. 57 as indicated in the map ad-measuring 37 feet from northern to southern side, in eastern side 67 feet and in western side 59 feet, total area is 2331 sq. ft. situated in Civil Lines, Sagar, The said plot was purchased by the plaintiff from Itwarilal son of Natthulal Mehtar vide registered sale deed dated 10-2-1992 and their name is recorded in the revenue papers and Corporation. It is said that in the northern side of the said plot about 6 feet broad culvert is there, in southern side 10 foot road, in eastern side plot of Pancham is there and in western side house of Parmanand is situated after 9 feet of the road. Adjacent to the plot, in eastern side 5 feet road towards northern side which is adjacent to Sagar-Jabalpur Main Road and in western side 10 feet wide road attached to Sagar-Jabalpur road which is a way of use. As per the map attached to the plaint indicated by green hedges right to enjoyment is there. If the defendants are allowed to raise construction, the right of enjoyment will come to an end. It is further said that after seeking permission construction has been raised on about 200 sq. ft. of land for which mandatory injunction may be issued and on the land of 6 feet the defendants be restrained to not to interfere in right to use of the land of plaintiff.

(3.) THE trial Court dismissed the suit filed by the plaintiff and on filing an appeal lower Appellate Court referring the oral evidence in paras 14 and 15 and thereafter from para 16 referring the documentary evidence up-to para 19 drawn the conclusion which may not be reasonably possible to draw and thereafter considering the application filed by the plaintiff-appellant as well as of the defendants filed before the trial Court directed- for appointment of the Commissioner and further directed for remand of the case for decision by trial Court.