SABAL SINGH Vs. BUDH SINGH

JUDGEMENT

(1.) THIS regular second appeal arises out of a judgment and decree dated 2.3.2004 of the court of Shri B.L. Singhal, the then learned District Judge, Sonepat whereby, reversing the judgment and decree of the Civil Judge (Jr. Division), Sonepat of 29.8.2003, accepting the appeal, suit of the plaintiff was decreed, restraining the defendants from raising any construction on the wall DC, with further direction to them to remove the wall DC from the plot in dispute.

(2.) JAI Lal, now deceased and represented by his legal heirs (now appellants) was having his plot on northern side of the plot of Budh Singh, plaintiff, now respondent. Plot of the plaintiff is on the southern side of the plot of the defendant. Concedingly, plot no.130/1/2/4 measuring 13 marla is owned by the respondent -plaintiff Budh Singh and his brother whereas plot no.130/1/2/3 again measuring 13 marla is owned by Jia Lal, now deceased, and being represented by his legal heirs, now appellants. Giving boundaries and depicting his plot in site plan Ex.P1 with letters ABCFED, the respondent -plaintiff Budh Singh claimed that on his northern side, the defendant had made encroachment by raising a wall depicted by letters DC in site plan Ex.P1 to the extent of three feet toward the western -northern and three feet towards the eastern -northern side. It is claimed that attempt to raise the wall was made on 10.10.1995 but was foiled by the plaintiff with the help of respectables of the village but when he visited the site again on 19.10.1995, he found the wall DC to the extent of 4 feet high. The defendant did not remove the wall resulting in the suit filed by the plaintiff for removal of the wall as also from raising any further construction thereon in the meanwhile.

(3.) THE defendant in return, had taken up a stand that the plaintiff had raised boundary wall as also kotha on his northern boundary and the wall was constructed 5 -6 years earlier to filing of the written statement on 28.10.1995 and no encroachment had been made by him since the wall had been raised only in his own plot and not in the plot of the plaintiff. To buttress his claim, it had been further avered by the defendant that he had purchased the plot from Nain Singh etc. co -sharers and the suit for pre -emption filed by another co -sharer Bhup Singh in the khewat, had also been dismissed vide judgment and decree dated 11.8.1995.