VIJAY KUMAR Vs. PREM CHAND

JUDGEMENT

(1.) Defendant -appellant Vijay Kumar, hereinafter referred to as the defendant, has filed the present appeal under the provisions of Sec. 100 of the Code of Civil Procedure, assailing the judgment and decree dated 8.10.2014, passed by the Additional District Judge (II), Kangra at Dharamshala, Himachal Pradesh, in Civil Appeal No. 71 -G/13/12, titled as Vijay Kumar v/s. Prem Chand, whereby judgment and decree dated 21.5.2012, passed by the Civil Judge (Junior Division), Court No. II, Dehra, District Kangra, Himachal Pradesh, in Civil Suit No. 164/II/2009, titled as Prem Chand v/s. Vijay Kumar, stands affirmed. Plaintiff -respondent Prem Chand, hereinafter referred to as the plaintiff, filed a suit for permanent prohibitory injunction and in the alternative for mandatory injunction, alleging that the land comprising Khasra Nos. 773, 767, Khata No. 77 min, Khatauni No. 98 min, measuring 0 -11 -69 HM, situate in Mohal Basdi, Mauza Ghangesu, Tehsil Jawalamukhi, District Kangra, Himachal Pradesh, hereinafter referred to the as the suit land, is owned and possessed by the defendant and his family members. Through the Meend (edge) of this land, a path (Lal Lakeer Rasta) leads to the land comprised in Khasra No. 769, Khata No. 78 min, which is owned and possessed by the plaintiff. It is alleged by the plaintiff that his land and the suit land was joint and was got partitioned by filing partition proceedings, being Case No. 86TK, 2003, titled as Babu Ram v/s. Prem Chand, decided on 8.12.2003. In the order of partition also, the path stands mentioned upon the Meend of Khasra Nos. 773 and 767 (suit land). The defendant is threatening to block the path by raising construction and has also stacked construction material over the suit land.

(2.) Defendant contested the suit by filing written statement. Besides taking several preliminary objections, he has denied existence of any path over the suit land. He has also stated that there existed an old cow shed over the suit land, which fell during heavy rains and it is only on the old site that he has started raising construction.

(3.) On the pleadings of the parties, trial Court framed the following issues: