SMT. MUNNI DEVI Vs. MATROO LAL

JUDGEMENT

(1.) The present second appeal has been filed by the plaintiff against the judgement of the Lower Appellate Court dated 19.9.2006. Briefly noticed, the plaintiff filed a suit against the defendants for a decree of mandatory injunction for removing obstruction/encroachment and construction made by defendant No. 1 on the disputed 20 feet wide rasta existing between the house of the plaintiff and defendant No. 1. Further prayer had been made for a decree for recovery of Rs. 2 lacs from the defendant No. 1 as damages towards malicious prosecution. It was pleaded that the plaintiff is the owner in possession of a residential house bearing No. 1076, F.C.A. situated in Sanjay Gandhi Memorial Nagar, Faridabad. In front of the residential house there existed a pucca road 20 feet wide under the ownership of Municipal Corporation, Faridabad, defendant No. 2 and it was meant for the use and enjoyment of the inhabitants of the locality. Defendant No. 1 in collusion with defendant no. 2 had unlawfully made encroachment on such 20 feet wide road and it was causing inconvenience and hindrance to the users and residents of the locality. The plaintiff had filed a complaint under Section 133 Cr.P.C. in the court of S.D.M., Faridabad for removal of such illegal encroachment at the hands of defendant No. 1 and the same was disposed of in terms of passing of order dated 13.2.2001. It was further pleaded that defendant No. 1 had filed a civil suit in which the plaintiff had been impleaded and the same had been dismissed on 25.9.2001 and even the civil appeal preferred by defendant No. 1 was dismissed vide order dated 5.11.2001. Defendant No. 1 then filed a Regular Second Appeal in the High Court which was also dismissed vide judgement dated 20.11.2001. It was pleaded that the plaintiff had, thus, been put to harassment and humiliation and had been unnecessarily dragged in false and frivolous litigation. The plaintiff pleaded that she was put to loss and had suffered mentally as also physically apart from economically as the wages that she earned by doing household work in other houses was deducted by the employers as she was forced to remain absent from work on account of attending to the litigation. On such pleadings her claim of damages/compensation amounting to Rs. 2 lacs had been set up. The decree for mandatory injunction was with respect to the removal of the encroachment and to restore the 20 feet wide road/rasta to its original condition.

(2.) Defendant No. 1 contested the suit and denied having caused any illegal encroachment upon the 20 feet wide road. Defendant No. 1 on the other hand pleaded that it was the plaintiff, who had initiated a number of frivolous litigations and as such defendant No. 1 was entitled to be awarded compensatory cost to the tune of Rs. 20,000/-. Broadly, a case of denial was set up by defendant No. 1. Defendant No. 2 also filed a written statement and stated that the encroachment made by defendant No. 1 i.e. Sh. Matroo Lal in front of the house of Munni Devi, plaintiff had already been removed and as such there was no encroachment as alleged.

(3.) The parties went to trial on the following issues framed by the Trial Court:-