MEHMA SINGH Vs. CHARAN SINGH

JUDGEMENT

(1.) This is defendant's appeal against the judgment and decree of the lower appellate court whereby judgment and decree of the trial court has been modified thereby decreeing the suit of the plaintiff as prayed for.

(2.) Plaintiff filed a suit for mandator injunction directing defendant No. 1 to demolish the wall built by him on land shown as ABCD in the site plan which forms part of Khasra Nos. 117 and 118 of Khewat No. 75/100 and 74/99 respectively in Mauza Kharar, Hadbast No. 185, Tehsil Kharar, Distt. Rupnagar. According to the plaintiff, he is exclusive owner of land bearing Khasra No. 117 (3 Marlas) and also owns another piece of land measuring 5 Marlas comprised in Khasra No. 118 jointly with his four sisters (now arrayed as defendants). According to the plaintiff, Mehma Singh owns some area adjoining to the plots bearing Khasia No. 117 and 118. In June, 1976 defendant No. 1 is stated to have raised a wall to a height of 6-1/4 feet upon the land forming part of Khasra Numbers 117 and 118 this way encroaches upon an area measuring 38 feet x 9 inches which belongs to the plaintiff. Hence, the present suit.

(3.) Under issue No. 1 the trial court held that the plaintiff is owner in possession of land bearing Khasra No. 117 and a joint owner of land along with defendants No. 2 to 5 in respect of Khasra No. 118. This issue was accordingly decided in favour of the plaintiff. Under issue No. 2, the trial court came to the conclusion that the plaintiff has not been able to establish conclusively that the site ABCD on which wall has been constructed entirely forms part of Khasra Nos. 117 and 118. The trial court thus held that as per material on record it can be taken that the site in dispute forms part of Khasra Nos. 117, 118 and 119. Under issue No. 4, the court held that the defendant has failed to prove that the plaintiff is estopped by his act and conduct to file the present suit. Under issue No. 3, the court held that since plaintiff has failed to prove that he along with defendants No. 2 to 5 are exclusive owners of the site falling underneath the wall in dispute, the plaintiff is not entitled to the mandatory injunction. Resultantly, the trial court held that the wall in dispute shall be jointly owned by the parties entitling them to the benefit of incidental to the joint ownership of the wall ABCD as given in the site plan Exhibit P1.