ANJANI KUMAR Vs. DESH RAJ

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 21.6.2012 passed by the Additional District Judge, Fast Track Court, Hamirpur in Civil Appeal No. 53 of 2010.

(2.) "Key facts" necessary for the adjudication of this Regular Second Appeal are that predecessor-ininterest of the respondents-plaintiffs (hereinafter referred to as "plaintiff" for convenience sake) filed a suit against the appellant-defendant and proforma respondentsdefendants (hereinafter referred to as "defendants" for convenience sake). According to the plaintiff, land comprised in Khata No. 67, Khatauni No.94, Khasra No. 326 situate in Tikka Didwin, Tappa Mehlta, Tehsil and District Hamirpur is owned and possessed by the plaintiff. She had constructed a residential house over the part of the suit land. A retaining wall was constructed on the edge of the suit land by her to protect the land. Defendants are in possession of the adjoining land comprised in Khata No. 114 min, Khatauni No. 155 min, bearing Khasra No. 359 min, measuring 1 kanal 16 marlas situate in Tikka Didwin, Tappa Mehlta, Tehsil and District Hamirpur owned by the State of Himachal Pradesh, kept in "reserve pool". Land of the plaintiff comprising Khasra No. 326 and adjoining land comprising Khasra No. 359 min were on the same level. Plaintiff had been enjoying the lateral support to the suit property from khasra No. 359 min since the time immemorial. The customary right of the lateral support was hindered by the defendants. Defendants have raised some construction upon Khasra No. 359 min in such a manner that the retaining wall has been exposed causing danger to the entire suit property existing over khasra No. 326.

(3.) The suit was contested by the defendants. According to the defendants, the suit was bad for non- joinder and mis-joinder of necessary parties. According to them, they are in peaceful possession over the land comprised in khasra No. 359 min since the time of their ancestors. According to them, the level of khasra No. 359 min is lower than khasra No. 326. The factum of the digging and excavation of the land with a view to lower down the level of Khasra No. 359 min was specifically denied.