JAI PRAKASH SHARMA Vs. SUSHIL KUMAR SHARMA

JUDGEMENT

(1.) APPELLANT , hereinafter referred to as 'the plaintiff', is in second appeal before this Court, because learned District Judge (Forest), Shimla, vide judgment dated 31.7.2013, passed in Civil Appeal No. 46 -S/13 of 2012/11, has reversed the judgment and decree dated 30.4.2011, passed by learned Civil Judge (Senior Division), Court No. 1, Shimla, in Civil Suit No. 6/I of 2009 and dismissed the suit.

(2.) THE appeal has been admitted on the following substantial questions of law:

(3.) IN the written statement, the defendant has contested the suit on the ground of maintainability, estoppel and also raised question of cause of action. On merits, it is claimed that the land stands divided between the parties right from the time of their ancestors and is now in possession of the parties to the extent of their respective shares. It is denied that the vacant land is being used for common purposes. It has further been submitted that whatever area falls in front of the house of the right holders, the same has been allotted to them and is in their exclusive possession. The third house is stated to be that of one Shri Amar Chand and the land in front of his house is in his exclusive possession. The plaintiff allegedly has failed to plead any custom as claimed in the plaint. It has, therefore, been submitted that since the land in front of the house of the defendant is in his exclusive possession, therefore, he has every right to use the same, as per his convenience and that the plaintiff has no right whatsoever to obstruct and restrict the user thereof by the defendant.