KHUSHI MOHAMMAD Vs. NATHU

JUDGEMENT

(1.) This is defendant's second appeal challengeing the judgment and decree of the lower appellate court whereby the suit of the plaintiff/respondent has been decreed and the appellant has been restrained from making any encroachment over the street in question and further a decree for mandatory injunction directing the appellant to remove the wall BC as shown in the site plan Ex.X prepared by the local commissioner and site plan Mark XI produced by the plaintiff/respondent. As per the averments, the plaintiff/respondent was the owner in possession of the house shown in green colour in the site plan Mark X which he had constructed after purchasing the vacant plot vide sale deed dated 15.3.1973. It was further averred that on the northern side of the house of the plaintiff/respondent, a 10 feet wide street shown as ABCD red colour in the site plan, which was also recorded in the sale deed. On the northern side adjoining the street, there was the house of the defendant but there was no door/window etc. of the house of the defendant towards the street. The plaintiff had access to his house from this street. The appellant/defendant wanted to encroach upon the street illegally and forcibly and for this reason, he collected the building material and tried to make encroachment upon the street in dispute by raising construction over the same. It was further stated that on 5.10.2000, the defendant illegally and forcibly constructed wall upto the height of 6 feet, 10 feet in length and of thickness of 4 inches at the spot, shown in red colour ABC in the site plan. Hence, this suit.

(2.) Upon notice, defendant/appellant filed written statement taking preliminary objections. On merits, it was admitted that there is a street of 10 feet width but the site plan Mark X was not correct. It was also admitted that on the northern side of the wall adjoining to the street, there was house of the defendant/appellant. Allegations with regard to encroachment were denied. It was further submitted that the defendant had already made some construction on portion DEFG in the site plan which is part and parcel of his house and was not part of the street.

(3.) The trial court dismissed the suit. However, while the appellate court allowed the appeal filed by the plaintiff/respondent while allowing the appeal, the appellate court observed as under:-