KESHAV PRASAD Vs. TULSIRAM

JUDGEMENT

(1.) The appellant has filed the present appeal challenging the judgment and decree dated 17.04.2017 passed by 3 rd Additional District Judge, Sagar, in Civil Appeal No.04-A/2016, whereby while affirming the judgment and decree dated 25.02.2016 passed in Civil Suit No.44-A/2015 by the trial Court, has dismissed the first appeal filed by the appellant.

(2.) The appellant/plaintiff filed a Civil Suit, claiming the relief of declaration, mandatory as well as permanent injunction with respect to a common Kulia for Nistar purposes, which has been blocked by the defendant by raising construction of a wall, doors and septic tank and also made construction of staircase in the Kulia to approach first storey of the house of defendant, while the said common Kulia for Nistar purposes is in existence since a very long time. It is the case of the plaintiff before the Court below that there is a Kulia between the house of the appellant/plaintiff and respondents/defendant, situated at Gopalganj, Sagar which is for common Nistar purposes, which is 7-8 feet in width from East-West side, 46 feet 9 inch long from Nor-South side. The house of the plaintiff is at the South side of said Kulia. The South portion of the Kulia is kissing with the main road. The one door of the house of appellant is opened in the Kulia. The one door of East wall of the house of respondent is also opened towards the Kulia and the same position is already mentioned in the map dated 19.03.1941. At that time the Flash Latrine were not in existence, then the sweepers used to use this Kulia. The Nistar water of the houses adjacent to the Kulia was blown from this Kulia towards outside. This Kulia had been always used for common purpose. After flash latrine came into existence and the visits of Sweepers have been stopped, but the nature of Nistar is as usual. The said Kulia is not a private proper of anyone and neither any person has any right to raise constructions over the Kulia nor to change the nature of Kulia. From earth to sky, it should be opened. The defendant has changed the nature of common Kulia and using the same for his personal use. In the year 2013, the defendant has raised construction of a wall, doors and Septic Tank and also made construction of staircase in the Kulia to approach first storey of the house of defendant, while the said common Kulia for Nistar purposes is in existence since a very long time. Due to this reason, the plaintiff is facing inconvenience, when the plaintiff has tried to stop such illegal construction, the defendant picked up quarrel with him, hence he has filed the Civil Suit for obtaining a Decree for dismantling illegal construction of the defendant and to maintain the nature of Kulia as usual as it was.

(3.) The defendant filed their written statement and refuted the averments made by the plaintiff in his plaint as usual, stating that he has not raised any new construction. The construction of the house of defendant is 15 years old, he has not encroached the Kulia. No any dispute has occurred between them. The door of the house of defendant in the said Kulia is affixed from a long time. The defendant further stated that at the North portion of the Kulia, there is a Kachchi Latrine of the house of plaintiff, which is more that 20 years old, for which, the Sweepers used to visit there, but as the cattle used to enter in the Kulia, due to this reason the defendant has closed the way to exit of the Kulia through affixing the door at the South side. The defendant alleged that the plaintiff has filed a forged map and prayed for dismissal of the suit of plaintiff.