MANGILAL Vs. SHANTILAL

JUDGEMENT

(1.) This is a second appeal filed by the defendant under Section 100 of C.P. Code against the Judgment / decree, dated 28-02- 1982, passed by learned Additional District Judge, Mandsour (Neemuch) in S.A. No.48-A of 1979, which in turn arises out of Civil Suit No.72- A of 1976, decided by Civil Judge, Class 11, Neemuch, on 28-06- 1979. The appeal was admitted for final hearing on following substantial question of law:--

(2.) Heard Shri PK Saxena, learned senior counsel with Shri Ranuka, learned counsel for the appellant and Smt. Sadhna Pathak, learned counsel for the respondents.

(3.) In short, the case of plaintiff is that defendant has made some construction over the land belonging to plaintiff thereby has committed some sort of an encroachment. It is also complained that an obstruction in the enjoyment of plaintiff's easementary right is also being created and hence, need to claim injunction as also removal of encroachment on the land. The defence of defendant was that of denial of plaintiff's case and raising a plea of limitation that suit is barred by limitation. Parties led evidence. The trial court partly decreed the suit holding that defendant has made encroachment on plaintiff's land and hence, he must remove the offending construction. It is also directed that defendant should also not create any obstruction in future. However, relief in relation to infringement of easementary rights was declined. The defendant then filed first appeal whereas the plaintiff filed cross objection. By impugned judgment /decree, the first appellate court dismissed the appeal filed by the defendant so too the cross objection of plaintiff. It is against this judgment, only the defendant has filed second appeal. The plaintiff has renewed his cross objection.