KUSUM LATA AND ANR. Vs. VIJAY KUAMR

JUDGEMENT

(1.) THIS petition is directed against the order dated 14.1.2010 passed by the learned District Judge, Una, whereby he allowed the appeal filed by the respondent here -in -after referred to as the plaintiff and set -aside the order of the learned Civil Judge (Jr. Division), Court No. 3, Una, whereby she had dismissed the stay application filed by the plaintiff.

(2.) BRIEFLY stated the facts of the case are that the plaintiff filed a suit claiming that the defendants were raising construction on Khasra No. 100/1 Up Mohal Shiv Nagar (Una). The case of the plaintiff was that this land formed part of a public street and therefore the defendants had no right to raise construction thereon. The learned trial Court rejected the application mainly on the ground that the Settlement Collector vide his order dated 16.6.2008 had come to the conclusion that the earlier record showing the width of the path at 9 meters of the southern end appears to be incorrect and he reduced the path to 5 meters at the southern end.

(3.) AT this stage, this Court is not required to go into the merits of the respective contentions of the parties which have to be decided on the basis of the evidence led before the trial Court. However, it cannot be said that the plaintiff has not made out any prima facie case whatsoever. A perusal of the record shows that in fact earlier the path was shown as 12 -1/2 meters which by the earlier order of the Settlement Collector was reduced to 9 meters at the southern end. The question which arises for consideration is whether thereafter the Settlement Collector could have passed another order further reducing the width of the public street. These questions are important questions which have to be decided at the stage of final hearing. Therefore, I find no merit in the petition and the order of the learned District Judge restraining the defendants from encroaching upon public street described in Khasra No. 100/1 Up Mohal Shiv Nagar (Una) is upheld and the petition is dismissed.