NAINA DEVI Vs. PURNU DEVI

JUDGEMENT

(1.) THIS appeal is directed against the impugned judgment and decree, rendered on 01.09.2001, by the learned District Judge, Kullu, H.P., in Civil Appeal No. 36 of 2001, whereby, the learned District Judge, Kullu dismissed the appeal preferred by the appellants/defendants.

(2.) THE brief facts, of the case, are that the plaintiffs and proforma defendants no.5 to 10 are recorded owners in possession of the land measuring 1 -11 -0 bigha, comprised in khasra No.6132, Khata Khatauni No.58/142 situated at Phati Parli, Kothi Kot Kandi, Tehsil and District Kullu, H.P., in equal shares. On the aforesaid khasra number, the plaintiffs have 2 storeyed residential house, along with, verandah, as, shown in the site plan by letter HMLK along with a court yard measuring 51 x29 shown by letters FGHKSR. As per the site plan, appended with the plaint, on the eastern side of the aforesaid courtyard and house, there is a retaining stone wall of the height 5 to 8 , as shown in the site plan by letter FGHM. The defendants No.1 to 4 have constructed a residential house on the eastern side of the aforesaid land on government land, which is at lower level and divided by the aforesaid retaining stone wall. It is pleaded that the defendants No.1 to 4 had earlier filed a civil suit No.152/1993 against plaintiff No.1 and proforma defendant No.9, which was dismissed on 3.8.1995 and consequent appeal was, also, dismissed on 27.11.1995. Thereafter, the plaintiff and defendant No.9 constructed a single storeyed tin roofed latrine, shown by letters TUVW in the site plan. The earlier suit of the defendants which was dismissed, also, pertains to the land on which the plaintiffs constructed latrine. Performa defendant No.9 being, the only son of the plaintiff No.1 was arrested in a criminal case and locked in judicial custody. Taking advantage of the absence of the male member in the house of the plaintiffs, defendants No.1 to 4 without any right, title or interest removed few stones of the retaining wall on eastern side of the latrine and constructed five steps for reaching the court -yard and latrine of the plaintiffs. Such act of the defendants, done on 5.5.1996 was illegal. They threatened the plaintiffs, when requested not to remove the stones from the retaining wall and also threatened them to demolish the retaining wall and proclaimed that latrine of the plaintiffs is not located on khasra No.6132, owned and possessed by the plaintiffs.

(3.) THE plaintiffs filed replication to the written statement of the defendants, wherein, they denied the contents of the written statement and re -affirmed and reasserted the averments made in the plaint.