SURESH KUMAR Vs. OM KALRA

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 1.11.2011 rendered by the learned District Judge, Sirmaur District at Nahan in Civil Appeal No. 33-CA/13 of 2007. Material facts necessary for the adjudication of this Regular Second Appeal are that appellant-plaintiff (hereinafter referred to as 'plaintiff for convenience sake) filed a suit for permanent prohibitory injunction. According to the plaintiff, one Smt. Saraswati Devi daughter of Sh. Madhu Sudan Dass was the owner of the land with construction under Khasra Nos. 1091, 1094, 1097, 1098 and 1099, Khata Khatauni No. 19/31 measuring 53.97 square meters situated in Muhal Rajinder Nagar, Nahan. She was also owner of the property in possession of the respondent-defendant (hereinafter referred to as 'defendant' for convenience sake), which was towards Ranjore Bhawan, Nahan. Smt. Saraswati Devi sold her house and vacant land with all rights for egress and ingress, light and air to the plaintiff vide registered sale deed dated 3.8.1998. Earlier Smt. Saraswati Devi had been residing in this portion herself and her egress and ingress to this property was from the direction of Ranjore Palace. Building plan depicting entire property was appended with the plaint. The ground floor of the house owned by Smt. Saraswati Devi was shown in red colour, which was purchased by the plaintiff. The portion of the plaintiff, which was purchased earlier to the instant purchase dated 3.8.1998 was shown in building plan in green colour and the portion purchased by the defendant from Smt. Saraswati Devi and her relations was shown in blue colour. However, the portion reflected in para "A" of the building plan wherein adjacent to staircase reaching the main street was store in blue colour has been shown which was not a store at the time of purchase but it was part and parcel of adjoining staircase. The staircase was being used by the defendant and Smt. Saraswati Devi as common path. The defendant, according to the plaintiff, forcibly and illegally dismantled the staircase and constructed a store thereon. In the process, the right of egress and ingress to the respective tenements was effected. According to the plaintiff, defendant has no right to use this part of the staircase and to construct a store. The same was liable to be dismantled and restored to its position. According to the plaintiff, his predecessor-in-interests had right to egress and ingress to the double storied house situated in Khasra No. 1099 through Khasra No, 1094. Defendant had been interfering in Khasra Nos. 1098, 1097 and 1094. Defendant has placed certain flower pots before the door step in the year 2003. He was threatening to construct a wall in front of said foot steps so as to permanently and illegally block the ingress and egress to his property.

(2.) The suit was resisted and contested by the defendant. It was stated by the defendant that vide sale deed dated 7.1.1981, she purchased the property from Smt. Saraswati Devi. She constructed the house in the year 1985-86. The plaintiff also purchased the property from Smt. Saraswati Devi after the construction had already been completed by the defendant. There had been no ingress or egress of the vendor after 1981 from the stairs of the defendant nor the plaintiff had any passage from the stairs of the defendant even after the purchase in the year 1998. It was denied that the store was in existence in the year 1998. According to the defendant, the store was constructed in the year 1995. There is a septic tank below the store. The construction was carried out in the year 1995. No objection was raised at the time when the store was constructed. According to the defendant, the suit was barred by limitation.

(3.) The plaintiff filed replication. Thereafter, the learned Civil Judge (Senior Division) framed issues on 24.7.2003. Suit of the plaintiff was dismissed on 31.7.2007. Plaintiff preferred an appeal before the learned District Judge, Sirmaur at Nahan. He dismissed the same on 1.11.2011. Hence, the present Regular Second Appeal.