AYODHYA PARSHAD Vs. ISHWAR

JUDGEMENT

(1.) In nutshell, the facts of the case are that plaintiffs Ishwar, Dinesh and Thandi Ram, residents of village Pehrawar, Tehsil and District Rohtak had brought a suit against the defendants Ayodhya Parshad and his son Inder Mani of their village seeking a declaration that encroachment by the defendants over the street in question measuring 14 ' x 56 ', which was left amicably by the parties is illegal, without any right and title; in addition to that seeking mandatory injunction directing the defendants to remove the encroachment in question.

(2.) As per the version of the plaintiffs, the parties to the suit are owners in possession of plots comprised in Khewat No. 224, khatauni No. 254, Rect. and Killa Nos. 44/2(6-18), 53/29(2-11), 53/30(2-13), 53/38(0-18), 53/39(0-15), 53/40(0-15), 53/41(015), 53/42(0-15), 53/43(0-15), 53/44(0-15) measuring 17 kanals 10 marlas; in a family settlement arrived at between the parties, the plots were partitioned in equal shares and they had raised construction over their share; from killa No. 53/29, a passage having dimensions 14 ' x 56 ' was left amicably by all the plot holders for their ingress and egress and to connect the main passage instead of using long way of phirni to reach their plots from the village; the plaintiff No. 3 has his electric wire, water pipe and window towards that piece of land but the defendants being head strong persons have constructed a kotha therein forcibly and without any right or title; the plaintiffs had complained about the said encroachment to the police of Police Station Sadar, Rohtak but instead of taking any positive action, the police had initiated security proceedings under Sections 107/151 Cr. P.C. against defendant No. 2 only; when the defendants refused to accede to the requests of the plaintiffs to remove the encroachment from the passage in question, they filed a suit in question before the Civil Court at Rohtak.

(3.) On being put to notice, both the defendants appeared and filed written statement contesting the suit inter alia raising preliminary objections that the suit was not maintainable; that the plaintiffs had not approached the Court with clean hands; that the suit was not properly valued for the purpose of Court fees and the suit was bad for non-joinder and mis-joinder of the necessary parties. On merits, the defendants admitted that the suit land was jointly owned and possessed by the parties. According to them, the suit land was partitioned and plaintiffs had to hand over the possession to the answering defendants; the defendants are owners in possession of the suit property since the time of their forefathers; the plaintiff No. 3 has wrongly opened a window towards house of answering defendants. The answering defendants denied that they have encroached upon any part of the street. According to them, they have constructed their room being owner in possession of the suit land. They admitted that security proceedings under Section 107/151 Cr. P.C. were initiated against defendant No. 2 but it was contended by them that as decided in the village Panchayat, both the parties would get the suit land demarcated, the plaintiffs did not do so and rather filed the suit against them. Refuting the remaining assertions in the plaint, the defendants prayed for dismissal of the suit.