CHANAN SINGH Vs. MILKHA SINGH

JUDGEMENT

(1.) THIS is Defendant's Second Appeal against whom suit for mandatory injunction was dismissed by the trial Court but has been decreed in appeal.

(2.) THE Plaintiff, Milkha Singh, filed a suit for mandatory injunction to the effect that the Defendant should restore the street as shown in the site plan, bearing Khasra No. 171, by demolishing wall ABCD and sun -shades marked 'X' and 'F' in the site plan, situate in the abadi of village Sahlon, to its original position as a passage which runs from South to North to the house of the Plaintiff, shown in green. In the Written Statement, the Defendant denied the ownership of the Plaintiff as wall as the nature of Khasra No. 171 as rasta. It was also denied that the Defendant ever encroached thereon. It was pleaded, inter -alia, that the Gram Panchayat was a necessary party and the suit, as such, was not maintainable. The trial court found that the Defendant had not encroached upon the rasta (path), bearing Khasra No. 171, by constructing wall ABCD and had also not made any other construction as alleged in the plaint. All other issues were decided against the Defendant. However, in view of that finding, the suit was dismissed. In appeal before the Senior Sub Judge with Enhanced Appellate Powers, the material point for consideration was whether the Defendant had caused encroachment upon the rasta bearing Khasra No. 171 and also made other constructions as alleged in para 3 of the plaint. The trial court had appointed a commission at the instance of the Plaintiff, who made report Ex. P -2. The Plaintiff mainly relied on this report which stated that one sun -shade had been constructed at a height of 8' while the other at a height of 101/4 with a width of 1 -3". Objections to the said report were filed on behalf of the Defendant, and, therefore, the trial court ignored the report. However, in appeal, the learned lower appellate court relying on the said report came to the conclusion that the finding of the trial court that the sun -shades made by the Defendant would not cause any obstruction in the taking of loaded and unloaded carts was erroneous, and set aside the same. Ultimately, the suit was decreed only to the extent that the Defendant was directed to remove the sun -shades over -hanging in the rasta within a period of two months. Aggrieved with it, the Defendant has filed this Second Appeal.

(3.) AFTER going through the said report of the Local Commissioner Ex. P -2, I do not find any merit in this appeal. There is no misreading as was contended at the time of motion hearing. By constructing the sunshades, the Defendant has caused obstruction in the taking of the carts, etc., and, therefore, it has been rightly held by the lower appellate court that the Plaintiff is entitled to the reliefs sought for, to this extent. In these circumstances, the appeal fails and is dismissed with costs. However, the Defendant is directed to remove the sun -shade over -hanging in the rasta, within a period of two months failing which the Plaintiff/Respondent will be within his right to get it removed in accordance with law.