SHANTI DEVI Vs. NAND KISHORE

JUDGEMENT

(1.) This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging concurrent findings of facts recorded by both the Courts below holding that the plaintiff-appellant is not entitled to a decree for permanent injunction restraining defendant-respondents from interfering in her peaceful possession. It has further been held by the lower Appellate Court that defendant-respondents are entitled to the relief of counter-claim seeking direction to the plaintiff-appellant restraining her from opening the gate fixed by her on her house towards Raj Colony and also to remove the same immediately as it has been fixed after the filing of the suit.

(2.) Brief facts of the case necessary to decide the controversy raised in the instant appeal are that the plaintiff-appellant Shanti Devi filed a civil suit seeking permanent injunction restraining defendant-respondents from closing the gate of the court-yard of her house situated in Raj Colony, Samani Gate, Patiala. Further prayer was also made for restraining defendant-respondents from interfering in the peaceful possession of the plaintiff-appellant over her house with its court-yard. The plaintiff-appellant made averment that she has purchased a plot measuring 144 sq. yds. through registered sale deed and thereafter constructed a house thereon. In the court-yard she is claimed to have fixed a gate described as AB in the site plan with the permission of the original owner of the suit property under an agreement dated 26-12-1986 (16-12-86?). She further claimed that she is in peaceful actual and continuous possession of the property in dispute since the date of its purchase. It is alleged that defendant-respondents have started threatening the plaintiff- appellant to close the gate AB of the Court-yard of her house and despite requests made by her the threat continued which resulted into filing of the suit. The stand taken by the defendant-respondents in their written statement-cum-counter claim is that the plaintiff-appellant has no property in Raj Colony and her building is situated in Dhillon Colony, Patiala. They denied all the pleas of the plaintiff-appellant. In the counter-claim set up by the defendant-respondents a direction has been sought to restrain her from opening the afore-mentioned gate AB which is fixed by her after the filing of the suit towards Raj Colony. It is further prayed that the afore-mentioned gate be removed immediately and the suit of the plaintiff- appellant be dismissed with costs and the counter-claim be allowed. The Courts below framed the following issues : "

(3.) On Issue No. 1, the learned trial Court reached the conclusion that the construction of the house by the plaintiff-appellant is admitted by defendant-respondents and defendant-respondents were restrained from interfering in the peaceful possession of the house. On the question of counter-claim. Issue No. 4 was framed and it was decided against the defendant-respondents. The Civil Judge dismissed the suit as well as the counter-claim. The basis of dismissal of the suit was that the plaintiff-appellant failed to prove that she has fixed a gate AB as per Ex. P.2 site plan with the consent of the owner as per the agreement entered into between her and the owner dated 26-12-1986 (16-12-1986?) she also failed to prove on record how much land she purchased vide sale deed dated 24-7-1985 as the sale deed was not placed on record.