BANARSI DASS Vs. PARKASH CHAND

JUDGEMENT

(1.) This is Defendant's second appeal challenging the judgement and decree of the Lower Appellate Court, whereby suit of the Plaintiff-Respondent for permanent injunction restraining the Appellant from encroaching upon or raising any construction upon the Rasta in dispute, was decreed.

(2.) As per the averments made in the civil suit, Plaintiff-Respondent was owner in possession of plots No. 25 and 41 in khasra No. 760. The Defendant-Appellant had constructed his house in plot No. 14 of khasra No. 760 and was residing in the same. On the northern side of plot No. 14, a common street 20 feet wide was existing for the use of inhabitants and was being used as a common passage of the villagers. The Appellant, in order to encroach upon the aforesaid common street, illegally and during the pendency of the suit raised illegal construction in the street and therefore aforesaid construction was liable to be removed and Appellant was liable to be restrained from further encroaching upon the common street.

(3.) On the other hand, Appellant resisted the suit by filing written statement alleging therein that the Plaintiff-Respondent had no locus standi to file the present suit and the same was not maintainable. It was further alleged by the Appellant that before construction of his house which abuts the alleged street, he had actually got measured the plot in the presence of the Plaintiff and in the presence of respectable members of the village and was strictly adhering to that demarcation. In fact, the Plaintiff-Respondent had encroached, illegally, plots of the new inhabited area and since Appellant was not supporting him, the present suit was filed just to harass him. Appellant had not made any encroachment of the street and therefore, Plaintiff-Respondent was not entitled to any relief. After appreciating the evidence led by the parties and hearing learned Counsel for the parties, the trial court dismissed the suit.