BALAVADRA DAS Vs. SUDHANSU SEKHAR MISHRA

JUDGEMENT

(1.) Plaintiff is the appellant before the Court against a reversing judgment. The suit was filed for mandatory injunction directing removal of encroachment made by the defendant-respondent and for damages.

(2.) Case of the plaintiff-appellant is that in the year 1950-51 a colony was established over several plots and all the plots are under Khata Nos. 43 and 70 in village Kundhaibenta Sahi. Said colony plan bearing No. 125 was prepared by the Puri Municipality-defendant No. 1. The plan consists of several holdings owned by different individuals and the plaintiff is the owner in possession of holding No. 36 plot Nos. 127 and 128. Plaintiff has got his residential house on the aforesaid two plots. Holding No. 37, plot Nos. 129 and 130 covered under the colony plan is owned and possessed by defendant No. 2. Holding No. 35, plot Nos. 123, 124 125 and 126 under the colony plan belong to the defendants 3 and 4. The specific case of the plaintiff is that the plan of the colony prepared by the Puri Municipality indicates a road in front of plot Nos. 118 to 142 on the eastern side having 21 feet breadth. The above plot Nos. 118 to 142 situate in one line and the said road in front of the plots connect the main road at both ends i.e. northern end and southern end. The road in front of plots under Khata Nos. 43 and 70 was transferred to defendant No. 1 by way of gift deed dated 6.2.1955 by the then owner Mahanta Gadadhar Ramanuja Das and by virtue of the such gift Puri Municipality became owner of the said road. The road that had been kept for use of residents of the colony was encroached by the defendants causing inconvenience to the residents of the colony. Further allegation in the plaint is that the road is the only passage to the houses of the individuals who are occupying plot Nos. 118 to 142 and they have no other way to come to the main road. Since the road belongs to the defendant No. 1 every individual owner of the plots has right to use the said road as passage to come to the main road. The plot Nos. 127 and 128 belonging to the plaintiff situate in the middle of the Basti and defendant No. 2 who is the owner of plot Nos. 129 and 130 has encroached upon the road by blocking the same entirely since 1974. Similarly defendants 3 and 4 owner of Plot Nos. 123, 124, 125 and 126 have also encroached upon the road since 1972 and encroachment has been made to such an extent that the same cannot be used by other inhabitants. It is the case of the plaintiff that he had sent a petition to the Municipality on 17.12.1974 making such allegations and on the basis of the same Encroachment Case No. 54 of 1974 was started by the Municipality against the defendants and till filing of the suit no action had been taken by the Puri Municipality.

(3.) Defendants-respondents filed written statement and defendant No. 1 in his written statement admitted that it is the owner of the road which has been encroached by the other defendants. It was also contended by defendant No. 1 that plaintiff had also encroached the disputed road for which action was intended to be taken against him and before any action could be taken plaintiff removed the encroachment. Defendant No. 2 in his written statement denied all the allegations made in the plaint and challenged the maintainability of the suit at the instance of the plaintiff. Said defendant No. 2 denied existence of a road and consequently denied alleged encroachment made by him. Further case of the defendant No. 2 is that he has constructed boundary wall in the same line as per the construction of the plaintiff's boundary wall and there is existence of road in front of plot Nos. 118 to 142 in the eastern side which can be used by the plaintiff to come to his house. It is the case of the defendant No. 2 that he has taken delivery of possession of both the plots from the Math in the month of March, 1958. Defendant No 3 also filed his written statement denying existence of any road in front of plot Nos. 118 to 142 and at the time he obtained the lease of the land in the year 1958 there was no existence of any road in the map and the entire area was a sandy track. Other stand taken by the defendant No. 3 is more or less same as defendant No. 2. Defendant No. 4 also filed his written statement denying the plaint allegations as well as the existence of any road to the eastern side of Basti in Plot Nos. 118 to 142. Allegation of encroachment has also been denied in the written statement.