KIRPAL SINGH Vs. AMRIK SINGH

JUDGEMENT

(1.) This is the defendants' second appeal challenging the concurrent findings recorded by both the Courts below in a suit for prohibitory and mandatory injunction filed by the plaintiff, seeking to restrain the defendants from interfering with the exclusive usage of the street by the plaintiff and for closing the door of the house of the defendants, which opened in the street.

(2.) The facts in brief are that the suit in question was filed by the plaintiff-Amrik Singh; claiming that he and the defendant No.1 are the real brothers and defendant No.2 is the son of defendant No.1. The Rehabilitation Department had allotted 2 kanal 18 marlas of land to the father of the plaintiff and defendant No.1 in village Malikpur, within the lal laqir in the year 1959. After the death of their father, the land in question was inherited by the plaintiff and defendant No.1 alongwith their other brothers namely; Kulwant Singh, Kartar Singh and Balwant Singh. In the year 1971, the said property was partitioned amongst the brothers and since then the parties are in possession of their respective shares, as shown in the site plan attached with the plaint. All the brothers have raised construction of their houses in their respective shares and started residing there. However, while dividing the said property, it was divided in such a manner that the property in which the plaintiff was given his share, was in the centre, whereas, all the other four brothers had got the surrounding portions, which abutted to other passages or the roads on the other sides. Therefore, as a part of the partition, to provide passage to the share of the plaintiff, a street measuring 7 feet was left exclusively for use by the plaintiff. At that time, it was also decided that except the plaintiff, no other brother would make any other opening on the said street. However, now the defendants started raising wall of height of about 5 feet on the land of the said street, narrowing the width of the street by 2 feet, as shown in the site plan. In their endeavor, the defendants constructed part of the wall in the said street despite the fact that the defendants had no right or interest in the said street. The said street is purely a private street meant for the plaintiff. However, the defendants opened their gate in the said street and started interfering in the free ingress and egress of the plaintiff; to and from his house.

(3.) The defendants filed written statement, in which the facts regarding ownership of the joint property and partition were admitted. It was also admitted that during partition, the plaintiff was given the property in the centre and all other brothers had the independent opening of their entrances on the other sides. However, it was asserted that the street in question was left for usage by all the brothers. There is no encroachment upon the same. The Gram Panchayat had made the street pucca. Even the drainage system through pipes has been laid down in the street. The pipes of the water supply has also been laid in the street. Therefore, now it is a public street and the defendants have every right to use the street and open their gates on the same.