KANTA SHARMA Vs. RAJESH JASWAL

JUDGEMENT

(1.) Instant petition filed under Art. 227 of the Constitution of India, lays challenge to the order dated 18.1.2019 passed by learned Civil Judge (Junior Division), Court No. III Sundernagar, District Mandi, Himachal Pradesh in Civil Suit No. 59/2013, whereby an application having been filed by the petitioners/plaintiffs (hereinafter, 'plaintiffs') under Order XXVI, rule 9 CPC, praying therein for appointment of local commissioner, came to be dismissed.

(2.) Precisely, the facts of the case, as emerge from the record are that the plaintiffs filed a suit for permanent Whether reporters of the Local papers are allowed to see the judgment? prohibitory and mandatory injunction under Ss. 38 and 39 of the Specific Reliefs Act against the respondent/defendant averring therein that land comprised in Khewat No. 318 min., Khatauni No. 343 min., bearing Khasra No. 388/1 measuring 0-8-0 Bigha situate in Muhal Nela/342, Illaqua Pandoh, Tehsil Sadar, District Mandi, Himachal Pradesh is recorded as Abadi Deh and same is owned and possessed by the petitioners. Plaintiffs claimed that on the aforesaid land, they have constructed a double storey house, as is evident from the Jamabandi for the years 2005-06, copy of Tatima Shajra and copy of sale deed dated 6.11.1990. Plaintiffs also claimed that they left 3 feet vacant land towards Mandi side from the constructed portion of the house and there is a link road known as "Sauli Khadd-Bharon" road and house of the plaintiffs is situate below road side. Plaintiffs claimed that the defendant without any right, title or interest over the suit land, has started construction over the suit land by raising columns and has illegally encroached upon 1 1/2 feet of land out of 3 feet vacant land left by them. Plaintiffs also claimed that the defendant has extended 2 feet slab on second storey of his building, as a consequence of which, windows of their house towards defendant's house have been blocked, as such, defendant may be restrained by way of injunction from raising any sort of construction on the vacant land.

(3.) Aforesaid claim made by the plaintiffs came to be refuted by the defendant, who in his written statement claimed that Abadi Deh in Khasra No. 388/1 is owned and possessed by all the inhabitants of Mohal having separate possession, as such, it cannot be said that plaintiffs are exclusive owners of the Abadi Deh in Khasra No. 388/1. Defendant further stated that the plaintiffs have no exclusive right over Khasra No. 388 and sale deed and Tatima are wrong and illegal. Defendant claimed that house of the plaintiffs exists over some portion of Khasra No. 388 and was was constructed nine years back. Defendant has denied that he is raising construction over any vacant land adjacent to house of plaintiffs.