ROSHAN LAL Vs. SUMATI PARKASH

JUDGEMENT

(1.) This appeal under Order 43 Rule 1(u) of the Code of Civil Procedure has been filed against the judgment passed by the learned District Judge, Hamirpur in Civil Appeal No. 23 of 2003 decided on 1.4.2005 whereby he has set aside the judgment and decree dated 30.11.2002 passed by the Sub Judge 1st Class (I) Hamirpur in Civil Suit No. 53 of 1994 and remanded the case for fresh decision.

(2.) The brief facts of the case are that Amar Nath (the plaintiff) who is the predecessor -in -interest of the respondents in the present appeal filed a suit that he is the owner in possession of the suit land entered in Khasra NO.4 min Khatoni Nos 7,8 and 9 Khasra Numbers 468 to 474 in Up -mohal, Hamirpur, Tappa Bajuri, Tehsil and District Hamirpur. It was further alleged that this land is in his possession through various tenants. It was further alleged that he had constructed 5 shops in the year 1970 on the suit land as per plan approved by th& Municipal Committee. According to the plaintiff, he had been using the portion of the suit land adjoining his own land for the purpose of effecting the repairs to his property. The defendants have forcibly started construction over the suit land and they have dug pits as shown in the site plan. According to the plaintiff, the defendants were raising the construction without obtaining the permission from the Municipal Committee or the Town and Country Planning department. It was averred that no set back had been left by the defendants as per municipal bye laws and they were required to leave a sei back even in their own land. It was also claimed that the plaintiff has been enjoying the right to use the land belonging to the defendants adjoining the rear of his shops for the purpose of effecting repairs of his shops. According to the plaintiff, white washing etc. on his own building by using the land of the defendants.

(3.) The defendants (the present appellants) contested the suit. According to the defendants, the plaintiff has constructed the shops in the year 1974 and in fact encroached upon the land in Khasra No. 466 which was owned by the defendants. It was further alleged that the plaintiff had not constructed the shops according to the approved site plan. The plaintiffs case was denied and according to the defendants, their land was never used for effecting the repairs or white washing the shops. According to the defendants they were raising the construction in their own land in Khasra No. 465 to 467 strictly in accordance with the site plan approved by the Municipal Committee and the Town and Country department. According to the defendants they have also left the necessary set back.