S.S.NEGI Vs. JAGDISH CHANDER

JUDGEMENT

(1.) This appeal is against the judgment and decree dated 30 -11 -1985 passed by the learned Additional District Judge (2), Shimla in appeal C. A. No. 151 -S/13 of 1983/I23 -S/13 of 1985. By the impugned judgment and decree, the learned lower Appellate Court set aside the judgment and decree passed by the Sub -Judge, Rampur on the Civil Suit No. 12/1 of 1980.

(2.) The facts are as follows. Two appellants herein filed a Civil Suit against the three respondents for perpetual injunction as well as mandatory injunction. According to the plaintiffs -appellants, their house is situated on the land covered by Khasra No. 510 and to the West of their house, there is a Khasra No. 511 owned by them and ahead of Khasra No. 511, there is a Khasra No. 1088/506, which is owned by the defendants -respondents. This land comprised under the above Khasra number is on the West of the house of the plaintiffs situated within Khasra No. 510. Ahead of Khasra No. 1088/506 of the defendants/respondents towards West, there is a public road known as Kalpa -link road. According to the plaintiffs, the approach to the above road from the house is through their land cover ed by Khasra No. 511 and also land of the defendants covered by Khasra No. 1088/506 and they are using this path for the last 60 years, thereby they have acquired right of easement by way of prescription. The plaintiffs further alleged that there is a water tank for irrigation of the land of the plaintiffs covered by Khasra Nos. 512, 514, 511 and also some of the land of the plaintiffs The said water tank is located partly on the land of the plaintiffs covered by Khasra No. 511 and partly on the land of the defendants covered by Khasra No. 1088/506. The portion of the tank, which fell on the land of the defendants measured 4 Karam x 1 Karam and the tank has been shown in the site plan marked as Ex. PJ annexed with the plaint. The plaintiffs have averred that this tank is in -existence for more than 20 years and the water from the tank was being used by the plaintiffs as of right and uninterruptedly for 20 years. The grievance of the plaintiffs is that in the year 1980, the defendants obstructed the above passage by constructing a wall of 8 feet high on the boundary of the land between Khasra No. 511 and Khasra No. 1088/506. It has further been alleged that in the year 1980, defendant -respondent No. 1 had demolished the tank and a criminal proceeding was also started between them before the Chief Judicial Magistrate, Kinnaur and he was convicted and this conviction was confirmed both by the learned Sessions Judge and also by this Court.

(3.) According to the defendants, there was no passage, as alleged by the plaintiffs through Khasra No 1088/506. They have stated that initially this land was under cultivation, but from the year 1962 it remained uncultivated. The plaintiffs and other residents of the village started passing through the land, as it was lying uncultivated. According to the defendants, they again brought this land under cultivation in 1976 and raised the wall in question on the boundary of the lands covered under Khasra No. 511 and Khasra No. 1088/506. It has been denied that the plaintiffs have been passing through the land continuously for 20 years and did not exercise any right of way through the land, as alleged. It has also been denied that there was a tank or portion of the tank on the land, as claimed by the plaintiffs. According to the defendants, defendant No. I never demolished the tank.