DILBAG RAM Vs. BHAJAN DASS AND OTHERS

JUDGEMENT

(1.) Delays of 5 days in filing and 68 days in refiling the appeal are condoned.

(2.) The appeal is at the instance of the defendant who had suffered decree of mandatory injunction for removal of encroachment upon a property reserved as a public passage. The character of the property as public passage in Khasra No.708 is not denied but the contention that was taken was that the plaintiff was ever using the passage or that the plaintiff has any competency to institute the suit through a power of attorney. The plaintiff did not examine himself and issue of whether there had been a user of the property by the plaintiff was not being spoken by the plaintiff and the Court drew an adverse inference on the non-examination of the plaintiff. The Court also reasoned that there had been no specific demarcation made to identify the nature of encroachment or the area of encroachment and therefore, declined any relief in favour of the plaintiff.

(3.) In appeal filed by the plaintiff, the Appellate Court observed that there had been no denial of the fact that the property in Khasra No.708 itself was shown in the village record as a public passage and therefore, there was no element of necessity for the plaintiff to examine himself for proof of character of the property. The Court adverted to the fact that the defendant himself admitted in evidence that he had purchased the property in Khasra No.708 but did not file the document of purchase. The Court referred to the admission of the 2nd defendant that a wall had been raised in the portion of the passage without knowing that it was a public passage and the Appellate Court, therefore, reasoned that the aspect of the admission of construction in the passage need not have been proved any more than admission of the defendant himself. The Appellate Court had, therefore, reversed the judgment of the trial Court and allowed the appeal on the said line of reasoning.