SUDARSHNA DEV Vs. HARI KISHAN MASTER

JUDGEMENT

(1.) THE appellant was plaintiff and has come in second appeal against judgement, decree dated 27.12.1996 passed by learned District Judge, Kullu in Civil Appeal No. 42/1999 affirming the judgement, decree dated 24.11.1998 passed by learned Senior Sub Judge, Kullu in C/Suit No. 130/94.

(2.) THE facts in brief are that appellant had filed a suit for permanent prohibitory injunction and possession on the grounds that she is owner in possession of 2/3rd share of suit land measuring 0 -14 biswas comprised in khasra No. 4234, Phati Shilihar, Kothi Kotkhandi, Tehsil and District Kullu vide jamabandi for the year 1988 -89. The respondent is owner of adjoining land. The respondent has no right, title or interest over the suit land. On 5.8.1994, the appellant had found that respondent was raising construction of his building and before raising such construction he had removed fencing which was put by the appellant on the boundary of the suit land. The intention of the respondent was to encroach the suit land. The respondent had threatened to interfere on the suit land by raising construction including overhanging structure over the suit land. In these circumstances, the suit was filed.

(3.) THE respondent had replaced a portion of roof of his house which had fallen to his share and laid slab. He constructed second storey on the existing ground floor on which the slab was laid on 4.8.1994. The construction was raised by the respondent on his own land and on old structure. It has been submitted that adjacent to the house of respondent there is a drain which is 3 in width and after drain there is a public path 5 in width since time immemorial leading from Bhuntar school to Bhuntar Gadsa road. The path was metalled by Notified Area Committee, Bhuntar. The appellant filed replication and reiterated the stand taken by her in the plaint. The learned trial court dismissed the suit on 24.11.1998. The learned District Judge has dismissed the appeal and affirmed the judgement, decree dated 24.11.1998. The second appeal has been admitted on the following substantial questions of law: -1. Whether in view of the fact that the plaintiff has been held to be owner in possession of the property and her right threatened by interference and raising construction on property, the relief of injunction and in the alternative of possession could be denied to the plaintiff? 2. Whether the findings of the court below are based on mis -construction of oral and documentary evidence and also mis -reading thereof and inferences drawn that there exist three feet wide drain and 5 feet wide path between the land of the plaintiff and defendant is sustainable in law without demarcating the property by appointment of Local Commissioner?