BRIJENDER SINGH Vs. RAJ KUMARI

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 11.07.1997, passed by the learned District Judge, Solan in Civil Appeal No. 33-S/13 of 1994.

(2.) Material facts necessary for adjudication of this Regular Second Appeal are that the predecessor-in-interest of the present appellants, Mahavir Singh-appellant/plaintiff, who has died during the pendency of the appeal (hereinafter referred to as "plaintiff" for convenience sake), was owner in possession of the land bearing Khasra No. 830/558, Mauja Kather Solan. The respondent-defendant (hereinafter referred to as "defendant" for convenience sake), who was owner of the adjoining plot, started interfering in peaceful possession of the plaintiff by raising construction and by digging pits for erection of pillars. He forcibly erected six R.C.C. pillars on the land of the plaintiff, which he had kept vacant as set back measuring 25 X 1 meters and constructed a retaining wall on the land of the plaintiff illegally and forcibly. In these circumstances, the plaintiff had prayed for mandatory injunction and restoration of possession of the land to him after demolition of the un-authorized construction of the defendant.

(3.) Defendant resisted the claim of the plaintiff and she has also filed counter claim in her written statement. In the written statement, the defendant, controverted interfering in the ownership and possession of the plaintiff or taking forcible possession thereof. The defendant had pleaded that the plaintiff with malafide intention, has forcibly encroached the adjoining land of the defendant comprised in Khasra No.828/558 by raising four R.C.C. pillars and thereby encroached 12 X 1 meters land of the defendant. Pillars were raised by the plaintiff on the land of the defendant forcibly, despite protest, which encroachment was confirmed by demarcation report of the Naib Tehsildar and also by the report of the District Revenue Officer, Solan. The defendant in counter claim, sought mandatory injunction against the plaintiff for restoring her land comprised in Khasra No. 828/558 to original position after dismantling R.C.C. pillars.