SUCHA SINGH Vs. NATHA SINGH

JUDGEMENT

(1.) The plaintiff is in second appeal aggrieved against the judgment and decree passed by Courts below whereby suit for mandatory injunction for directing the defendants not to raise any construction over site ABCD in the site plan annexed so as to effect the right of the plaintiff over the street marked EFGH was dismissed.

(2.) The plaintiff claimed that he has constructed his house marked A in the year 1953-54 and another marked B in the year 1968-69. Both the houses are intervened by the street marked EFGH as shown in the site plan but the defendants threatened to raise illegal construction over the site ABCD falling within the street EFGH. The defendants asserted that the alleged construction was raised more than 3 years prior to institution of the suit and the suit for mandatory injunction for removal of the alleged construction is barred by time. Defendants also asserted that no alleged street is in existence at the disputed site and in fact it is the property of the defendants. The learned trial Court on the basis of pleadings of the parties framed the following issues:-

(3.) The learned trial Court on the basis of evidence led by the plaintiff returned a finding that plaintiff has failed to prove that disputed site is part of the street passing through Khasra Nos.201 and 203. On the basis of the site plan Ex.DW5/A and Ex.D1, the learned trial Court recorded that the disputed property is part of the houses of the defendants. The learned trial Court found that a local commissioner was appointed in the previous suit filed by the plaintiff himself and the local commissioner in his report Ex.D2 proved by DW3-Kulbir Singh, Advocate, has not found any street in the site marked ABCD. The learned trial Court also found that the suit is barred as the cause of action arose to the plaintiff on 11.03.1988 when the defendants allegedly blocked the street. Therefore, the suit filed on 31.05.1991 is barred by limitation. The learned first Appellate Court has affirmed the findings recorded by the learned trial Court.