GURCHET SINGH Vs. SEEMA RANI AND ANOTHER

JUDGEMENT

(1.) Suit filed by the plaintiff was decreed by the trial court vide judgment and decree dated 04.01.2012. Appeal preferred against the said decree failed and was consequently dismissed by learned first appellate court vide its judgment and decree dated 05.04.2014. That is how the appellant-defendant no.1 is before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

(2.) Seema Rani (plaintiff) filed a suit for mandatory injunction directing defendant no. 1 to vacate the encroachment made by him in Town Planning Scheme of unbuilt area no. 15, at the back of Duggal Resort (Lehre Wali Colony), Guru Kul Road, Bathinda by erecting a blind wall shown in red colour; 9'' thick, 126' in length and 3'2'' high, almost in the center of 20' wide proposed street in sanctioned Town Planning Scheme, by directing the demolition of the said wall and removal of malba/debris from the site and restoring the street in its original condition. As a consequential relief, a decree for permanent injunction was also prayed for that defendant no. 1 be injuncted from carrying on any construction activity on any part of the proposed 20' wide street. In short, the case set out by the plaintiff was that she was the owner in possession of a plot measuring 4339 sq. ft. comprised in Khasra no. 5330/4930, which is covered under the sanctioned Town Planning Scheme of unbuilt area no. 15 framed by the Municipal Corporation, Bathinda. It was asserted that her plot abuts on a 20' wide proposed street and the same adjoins her plot on the southern side. It was stated that the street is yet to be paved and metalled, but the outline of the street is clearly visible at the spot. It was maintained that defendant no. 1 is owner of land falling in Khasra no. 4927 situated to the south of the plaintiff's plot and the said defendant had encroached upon portion of the street by erecting a 126' long wall in the center of the proposed 20' wide street with an attempt to include the same in his plot. Thus, the suit. Defendant no. 1 admitted the ownership of the plots of the plaintiff and the existence of 20' wide proposed street in between the plots of the parties. However, the defendant denied the claim of the plaintiff that he had set up any encroachment upon the street, and rather the plaintiff had encroached an area measuring 7'2'', which was a part of the street from its eastern side, by raising a boundary wall. Defendant no. 2 i.e. Municipal Corporation, Bathinda filed a separate written statement, but denied the assertions of the plaintiff for want of knowledge.

(3.) On an analysis of the matter and the evidence on record, the learned trial court, vide a decree dated 06.10.2009, decreed the suit of the plaintiff, as prayed for. The said decree was assailed by defendant no.1 in an Appeal No. 80 dated 09.11.2009. The learned first appellate court, on consideration of the matter, was of the view that the dispute between the parties could be settled after demarcation of the plot of plaintiff, defendant no. 1, and of the disputed street. Accordingly, the matter was remitted to the trial court vide order dated 05.08.2011, for a decision afresh after receiving the demarcation report.