SUBHASH CHANDER Vs. GULSHAN SHARMA

JUDGEMENT

(1.) For the reasons mentioned therein, the application seeking condonation of 05 days delay in refiling the appeal is allowed. CM stands disposed off.

(2.) The present appeal is by the plaintiff-appellant against the judgements and decrees dtd. 30/1/2017 and 13/9/2018 passed by the Trial Court and the First Appellate Court dismissing his suit.

(3.) Briefly, the facts are that the plaintiff-appellant filed a suit for declaration, mandatory injunction and permanent injunction averring that he is the owner and in exclusive possession of a house which was purchased in equal shares by the father and the uncle of the plaintiff-appellant and later in 1975 the uncle sold his share in the house to the plaintiff-appellant. According to the plaintiff-appellant there is an 'open space' towards the western side of the above house, which is also a part of the house, in which a staircase is constructed which is used by the plaintiff-appellant. The defendant-respondent No.1 has no connection or concern with the 'open space' but was threatening to install chowkhat and jangla (gate and window) etc. towards western side by breaking open the wall which is the exclusive ownership of the plaintiff-appellant. It was further averred that defendant- respondent No.2, without any legal right or authority and by use of force and threats, has put a surface of RCC over 'open space' which is a part and so as to make it look like a street. Defendant-respondent No.2 had forcibly dismantled and removed the toilet and bathroom of the plaintiff-appellant. It was further alleged that defendant-respondent No.1 had in collusion with defendant-respondent No.2 constructed a kitchen on a part of the street leading to the 'open space' of the house of the plaintiff-appellant. The defendant-respondent No.1 had encroached upon a part of the street and reduced the breadth of the street. Hence, the suit. In the written statement the defendant-respondent No.1 submitted that there was no 'open space' but a Gali Sare Aam in between the house of the plaintiff-appellant and the house of defendant-respondent No.3 which Gali is a public property and meant for common use of the general public and the Gali had been made pucca by the Municipal Council Bahadurgarh in the year 2008 and 2009. According to defendant-respondent No.1, the sale deed dtd. 30/7/1959 in favour of the father and uncle of the plaintiff-appellant clearly mentioned that towards the western side of the said house there is a door of the said house meaning that the alleged ownership of the plaintiff-appellant was upto the door of the house only and not beyond that point. It was further submitted that while executing the sale deed in favour of plaintiff-appellant in 1975 his uncle had made wrong particulars regarding dimensions of the house in order to grab the land of the Gali Sare Aam in collusion with the plaintiff-appellant and that the land of Gali Sare Aam belongs to Municipal Council Bahadurgarh. It was denied that Gali Sare Aam, which the plaintiff-appellant claims is 'open space' is a part of the house and that construction of the stairs in the Gali Sare Aam did not give the plaintiff-appellant any title. It was denied that the kitchen had been constructed on part of the street leading to the 'open space' or that the defendant-respondent No.1 had encroached upon a part of the street. The kitchen had been in existence since long and the plaintiff-appellant had never raised any objection regarding the same. Defendant-respondent No.2 in its written statement denied knowledge about any alleged encroachment and also denied that the plaintiff-appellant had ever requested it for removal of the kitchen which is alleged to have been constructed on part of the street. Defendant-respondent No.3 adopted the written statement of defendant-respondent No.1. In his replication the plaintiff-appellant denied the averments of the written statements and reiterated those of the plaint.