GANDHRAB RAJ SHARMA Vs. DAULAT SINGH & ORS.

JUDGEMENT

(1.) PRESENT appeal has been filed against the order dated 16.9.1999 passed by the learned Additional District Judge, Hoshiarpur vide which learned lower Appellate Court has set aside the findings recorded by the learned Trial Court and has remanded the case back to the successor court of Shri Jagnahar Singh, Civil Judge, Hoshiarpur with a direction to appoint a Local Commissioner of Revenue Department not below the rank of Kanungo and direct him to report whether site adjoining the property of the plaintiff is the ownership of the defendants or part of the street and thereafter decide the suit afresh.

(2.) THE appellant-plaintiff had filed a suit for permanent injunction restraining the defendant-respondents from setting up any Barbed wire fencing or wall on the line AB in front of the western side of the property of the plaintiff situated in Gali Dhobian, Phagwara Road, Hoshiarpur as detailed in the head note of the plaint. The case set up by the appellant-plaintiff was that he along with his relations was co-sharer in Khasra No. 4095/196 and other Khasra numbers situated in the revenue estate of Village Sutheri. In a family settlement arrived at in between the parties along with his other co- sharers, the plaintiff was given property i.e. 11-1/2 Karams touching on the northern and southern sides and 24 Karams on the eastern and western sides out of Khasra No. 4095/196 in lieu of his share in other properties. It was the case of the appellant-plaintiff that he constructed his house and shops on the northern part of the property fallen to his share after obtaining permission from the Municipal Committee in the year 1978 and raised construction accordingly. The plaintiff-appellant claimed that there was a vacant plot of the plaintiff on the southern side of his constructed building and the same is used as court-yard. The plaintiff has enclosed it with with barbed wire fencing and that the plaintiff is enjoying that plot from the western passage. The plaintiff-appellant has also kept opening in the southern side of the building connecting the vacant plot. The case of the plaintiff-appellant was that the defendants had started asserting that they have their property abutting on the western side of the vacant plot of the plaintiff and are going to put barbed wire fencing in front of it with the object of closing approach from the western road to the vacant plot of the plaintiff. The defendant- respondents have no right, whatsoever, in the property on the western side of the plot of the plaintiff. The property on the western side of the plot of the plaintiff is part and parcel of metalled road.

(3.) ON the pleadings of the parties, the learned Trial Court framed the following issues :-