SEWA NAND Vs. SUBHASH CHANDER CHADDA

JUDGEMENT

(1.) DEFENDANTS Nos.1 and 4 are in second appeal after the defendants failed in both the courts below. Respondent No.1 plaintiff Subhash Chander Chadda filed suit against appellants and proforma respondent Nos.2 and 3 (all defendants). DEFENDANTS No.1 to 3 (appellant No.1 and respondent Nos.2 & 3) are partners of firm appellant No.2/defendant No.4. The plaintiff's case is that he is coowner in possession of a shop comprised of Khasra No.92/3(0-2) depicted in yellow colour by letters E F G H in the site plan annexed with the plaint. DEFENDANTS are owners in possession of land comprised of Khasra No.115/2/2/2/1 (15-12), which is situated on Northern side of the plaintiff's shop and is depicted by green colour in the site plan. However, there is a passage between the shop of the plaintiff and the land of the defendants. The said passage is comprised of Khasra No.92/80(0-8). The plaintiff has access to his shop through the said passage. There is also drain passing through the said passage for flow of dirty water. The said passage abuts Anaj Mandi and residents of the Anaj Mandi including the plaintiff use the said passage. They also have easementry right over it. However, defendants threatened to encroach upon the disputed passage illegally. The said passage is depicted in red colour by letters A B C D in the site plan. The plaintiff accordingly sought permanent injunction restraining the defendants from interfering in the disputed passage and from blocking the same and from interfering in any manner over the plaintiff's shop. During pendency of the suit, defendants encroached upon the disputed passage and therefore, the plaintiff by amendment of plaint sought mandatory injunction, directing the defendants to remove the encroachment from the passage.

(2.) DEFENDANTS broadly denied the plaint allegations. The defendants alleged that they are in open, hostile, peaceful and adverse possession of the disputed site for the last about twenty years and have become its owners by adverse possession. Suit of the plaintiff is barred by limitation. Plaint allegations were broadly controverted. It was pleaded that there is no passage intervening the shop of the plaintiff and the property of the defendants. There is no alleged passage around Mandi. Defendant's construction exists since the year 1978-79. Existence of drain for flow of dirty water through the disputed site was also denied. Various other pleas were also raised.

(3.) I have heard learned counsel for the appellants and perused the case file.