RATTAN LAL GUPTA Vs. NIRMAL KUMAR MISRA

JUDGEMENT

(1.) THIS Regular Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant/defendant against judgment and decree dated 20.3.2002 passed by learned Addl. District Judge, Solan, District Solan, H.P. in Civil Appeal No. 39 -S/13 of 2001 whereby he partly allowed the appeal of the respondent/plaintiff.

(2.) THE facts, in brief, are that the respondent/plaintiff filed the suit for permanent prohibitory injunction as well as mandatory injunction against the appellant/defendant claiming that he had purchased the land comprised in Khasra No. 5071/341/3 measuring 659 sq. metres situated in revenue estate Ser Tehsil and District Solan, H.P. from the previous owner Ram Rattan and others vide registered sale deed dated 28.9.1984 alongwith the copy of jamabandi and tatima dated 27.9.1984. The plaintiff further pleaded and claimed to have raised construction on the land so purchased and the defendant has also purchased some land from the same owner but the land over which right of passage was already sold to the plaintiff was also sold to the defendant. He further pleaded and claimed to have purchased a path leading from Rajgarh road touching to the path of revenue department to the plot of the plaintiff depicted in the tatima attached to the sale deed of the plaintiff but the mutation of this path was not attested by the revenue authority wrongly. The plaintiff pleaded that the defendant started digging the path to raise construction without any right, title or interest. The plaintiff further pleaded and claimed that the suit land comprises the path shown in tatima attached with the sale deed in red colour connecting the land of the plaintiff with the HPPWD, Solan Rajgarh road as well as the Revenue Department road which has been shown 32 feet wide and this path has been pleaded and claimed to be the part of the sale deed. The suit land has been pleaded and claimed by the plaintiff comprised in Khasra No. 5069/3012/340/8 min and new khasra No. 1591 and 1592. The plaintiff has pleaded and claimed that during settlement, new khasra number has been carved out in the absence of the plaintiff by revenue official in connivance with the defendant as well as previous owners. The plaintiff has further pleaded that the defendant is subsequent purchaser thereby have no locus -standi over the path which was already purchased by the plaintiff, through registered sale deed alongwith tatima. The plaintiff sought that the defendant be restrained from digging or raising any construction over the suit land and further sought the removal of the construction raised during the pendency of the suit over the suit land.

(3.) THE plaintiff filed replication in which the preliminary objections taken by the defendant in the written statement and also the plea of the defendant on merits were denied. The contents made by the plaintiff in the plaint were reasserted.