PUSHPA PANWAR Vs. GIAN CHAND TANK

JUDGEMENT

(1.) THE defendant is the appellant, who is aggrieved by the judgment and decree dated 8.5.2008 passed by the learned Additional District Judge, Sirmaur District at Nahan, H.P. in Civil Appeal No. 4 -N/13 of 2001 whereby he affirmed the judgment and decree dated 4.5.2001 passed by learned Senior Sub Judge, Sirmaur District at Nahan, H.P. in Civil Suit No. 119/1 of 2000/98.

(2.) THE plaintiff/respondent filed a suit seeking to restrain the defendant/appellant permanently from causing interference by raising construction in the land as detailed in para No. 1 of the plaint (hereinafter referred to as the suit land) and also seeking mandatory injunction for demolition and removal of construction raised by the defendant over Khasra No. 1355 by extending slab in the dimension of 1 1/2 feet wide and 11 1/2 feet long or in the alternative seeking a decree of possession on the basis of title of encroached area.

(3.) THE defendant/appellant contested the suit by filing written statement admitting therein that the suit land is owned and possessed by the plaintiff and the defendant has no right, title or interest in the suit land. However, it is denied that the defendant has encroached upon the suit land by raising some construction, but stated that such allegations of the plaintiff are baseless and false. The defendant has purchased 126 sq. yard of land vide sale deed No. 98 dated 30.10.1970 as per specific identification and boundaries given in the said sale deed and in the year 1976 the defendant has raised construction of the ground floor alongwith 'Chhajja' and further in the year 1983 -84 the first storey was also constructed by the defendant alongwith door opened on the Chhaja over the property which was the part of old Khasra No. 17 which has been depicted as Khasra No. 1357 during current settlement. The defendant during November, 1981 also purchased another plot adjoining to the above land which is being used by her as kitchen garden and the vendor vide sale deed dated 10.10.1970 has also given 1 1/2 feet wide space along side the Eastern and Northern side of the plot and the 'Chhajja' constructed by the defendant is also on her own property and there is a drain between the plot of defendant and plot of the plaintiff which drain has been constructed in the year 1976 which is surrounded by retaining walls on two sides. Since the retaining wall was just near the 'Chhajja' so there was free ingress of the insects and other poisonous objects like snakes etc., therefore, in order to safe -guard the lives and property the defendant has constructed one brick wide parda wall in the month of January, 1998 within the knowledge and without any objection of the plaintiff and the defendant has also constructed small staircase about 2 feet wide during February, 1984 to connect the new plot with the roof of ground floor and 'Chhajja'. It is denied that on 21.3.1998 any construction work was started by the defendant in order to encroach over the land of the plaintiff. It is also denied that after passing of the stay order, the defendant has forcibly and unauthorizedly encroached upon portion of the land of the plaintiff by extending slab as alleged by the plaintiff, but stated that the 'Chhajja' has been constructed by the defendant in the year 1976 -77. The site plan and the report of the Local Commissioner are stated to be incorrect and it is averred that no Local Commissioner was appointed to the knowledge and with the consent of the defendant nor he has conducted any demarcation in the presence of the defendant. It is further averred that the predecessor of the plaintiff never raised any objection to the construction of the Chhajja and subsequently the plaintiff did not raise any objection on such construction at the time when he purchased the suit land after verifying the facts on the spot and after ascertaining the revenue record and on account of his own act, conduct, acquiescence and undue delay the plaintiff is not entitled to any relief of mandatory injunction even if it is found that such 'Chhajja' has been constructed over a portion of the suit land.