THAKUR DASS Vs. JAI DEV

JUDGEMENT

(1.) -By this order both the appeals registered as R. S. A. No. 310 of 1989 and Civil Revision No. 180 of 1989 are being disposed of as both these cases have been filed against the same judgment passed by the learned District Judge at Mandi on 31 -3 -1989 in Civil Appeal No. 3 of 1983/130 of 1987. The appeal has been filed by the defendants and the revision petition by the plaintiffs.

(2.) Jai Dev and Hem Raj as plaintiffs filed a suit in the court of Senior Sub -Judge, Mandi, praying for prohibitory and mandatory injunction against Thakur Dass as the main defendant and 12 others as performa defendants. According to the plaintiffs there was a three storeyed house on the suit land and the ground floor of the house was recorded in the name of the plaintiffs and others, the first floor was recorded in the possession of Thakur Dass defendant No, 1 and Roop Chand performa defendant No. 13 and the second floor was recorded in possession of Goverdhan and Bali Bahadur, predecessor in interest of the plaintiffs and performa defendant Nos. 2 to 12. According to the plaintiffs, the defendant No. 1 started constructing a pillar in the suit land which was raised above the second floor thereby encroaching 0 8 sq meter of the space of the plaintiffs and performa Defendants 2 to 12. It has also been alleged that defendant No. 1 has put a slab on this pillar and it was extended by 50 decimeter (approximately) above the second floor of the building, it has also been pleaded that defendant No, 1 has no right, title and interest on the ground floor of the house and the above act of the defendant was illegal and would cause irreparable loss to the plaintiffs and the above performa defendants as they would not be able to build on the ground floor nor they would be able to raise their second floor inasmuch as the above slab will be an obstruction to the construction by the plaintiffs and the above performa defendants According to the plaintiffs unless the pillars and the slab are removed, right of the plaintiffs and the performa defendants will be prejudiced as they will be deprived of the right of enjoyment. The plaintiffs prayed for a mandatory injunction against defendant No. 1 directing him to remove the above pillar and the slab.

(3.) The suit was contested only by defendant No 1. According to the contesting defendant the building was only two storeyed one and that entries of ownership in the revenue record in favour of the plaintiffs and others were wrong, illegal and collusive and were made behind his back It has also been stated that the ground floor was in exclusive possession of defendant No. 13 as owner and prior to that alongwith the father of the plaintiff, Jai Dev It is admitted that the first floor of the building is in possession of defendant Nos. 1 and 13. Defendant No 1 has stated that he only replaced the wooden pillar which was in existence by brick pillar on the verandah of the suit land as the said wooden piller had become eaten and life lost. It was so done to provide support to the structure of this building. It has been denied that the defendants have encroached the space Other allegations of the plaintiffs have been denied and it has been pleaded that the plaintiffs have no right, title or interest in the suit land and no injury has been caused to the plaintiffs by the action of the defendants.