MUKHTIAR KAUR Vs. SITA SINGH

JUDGEMENT

(1.) This is a defendants' appeal and has been directed against the judgment and decree dated 22.1.2001, passed by the Additional District Judge, Sangrur, who allowed the appeal of the plaintiff Shri Sita Singh and set aside the judgment and decree dated 28.7.1999 vide which the suit of the plaintiff was dismissed and that the counter claim of the defendant was accepted and plaintiff was restrained from dispossessing the defendants being the legal representative of Shri Daulat Singh from Khasra No. 1743(0-2-2).

(2.) The brief facts of the case are that Shri Sita Singh filed a suit in the Civil Court against his real brother Daulat Singh for permanent injunction with regard to the street marked by the words "ABCD" 10 feet in width as per the site plan attached with the plaint. Shri Daulat Singh died during the pendency of the suit and his L.Rs were brought on record vide order dated 2.9.1997. According to the plaintiff he is residing in house denoted by the letters AGFI in the site plan for the last about 50 years with his family members. This house abuts to 10 feet wide street marked by the words (letters ?) ABCD. According to the plaintiff, he is using this passage as an approach to his house and there is no other passage apart from this ten feet wide street. This street is being used by him and his family members for the past about 50 years and, therefore, he has acquired the right of easement by prescription. It is also alleged by the plaintiff that this very street is also being used by the other residents whose houses abut this land. Now the defendants want to raise the illegal construction by putting a wall in order to obstruct the peaceful enjoyment of the right of the plaintiff to use that passage.

(3.) The suit was contested by the defendants. It may be mentioned here that Shri Daulat Singh had two marriages. From the first wife Smt. Bachan Kaur, Jagroop Singh and Maghar Singh were born. After the death of Bachan Kaur, Daulat Singh was married with Mukhtiar Kaur and appellants No. 4 to 9 are the children of Shri Daulat Singh from his second wife. These defendants filed written statements separately and raised counter claim for the declaration of ownership over the property in question. Shri Daulat Singh during his life time contested the suit and he denied the existence of any such ingress and egress to his house. According to Daulat Singh deceased, there was no street. The plot in question was not joint. The plaintiff had never acquired any easementary right by prescription. Rather, on the Northern side of the house of the plaintiff, there is a village Phirni. The land bearing Khasra No. 1743 measuring 2 Biswas 2 Bighas was purchased by him in the open auction on 2.4.1974 in the presence of the residents of the village. The defendants constructed the boundary wall on all the sides of the plot and had every right to construct the plot. It was also alleged by the defendant that Shri Daulat Ram was the owner of the property and after his death, his property devolved upon Dalwara Singh, Binder Singh, Darshan Singh and Gurmit Singh on the basis of the will dated 7.6.1996. The defendants are in exclusive possession of the property. Plaintiff wants to disturb their possession under the garb of specific order. With this background, the defendants made a prayer in the counter claim that since they are the owners of the land in question, therefore, the plaintiff be restrained from interfering in their peaceful possession.