NACHHATTAR SINGH Vs. BALDEV SINGH

JUDGEMENT

(1.) THIS regular second appeal is at the instance of appellants -defendants directed against the judgment and decree of the trial Court whereby the suit of the respondents -plaintiffs for mandatory injunction has been decreed in favour of the plaintiffs and against the defendants who have been directed to demolish the construction on the street in question within a period of three months. The appeal filed against the aforesaid judgment and decree of the trial Court also met with the same fate and accordingly, the appeal was dismissed.

(2.) AGGRIEVED against the aforesaid judgments and decrees of both the Courts below, the appellants -defendants have approached this Court through the aforementioned appeal.

(3.) THE present regular second appeal was admitted on 18.02.1997 and execution of the judgment and decree was ordered to be stayed. Thereafter, the matter was referred to Pre -Lok Adalat and in the proceedings conducted before the Pre -Lok Adalat, appellant No.1, namely, Nachhattar Singh did not press the appeal and his statement was recorded separately in this regard. Accordingly, the appeal qua appellant No.1 was dismissed as not pressed. Since the dispute is between appellant No.2 and the respondents, was not compromised. The matter was returned to this Court as no compromise was possible between the parties. It would be appropriate to refer few facts which are essential and necessary for adjudication of the controversy between the parties to lis. The respondents -plaintiffs initially had filed a suit for permanent injunction on 22.9.1987 and during the pendency of the suit, had sought the amendment twice, on the premise, that the appellants -defendants during the pendency of the suit had raised construction and therefore, sought the relief of mandatory injunction for an appropriate direction to the defendants to remove the encroachment from the pahi (passage). Appellants -defendants in the amended written statement took up the plea which has been extracted in the judgment and decree of the trial Court. For the sake of brevity, para No.2 of the judgment of the trial Court is reproduced herein below: -