JOHLI Vs. TULLU

JUDGEMENT

(1.) The instant Regular Second Appeal stands directed by the plaintiff/appellant against the impugned rendition of the learned Additional District Judge, Mandi camp at Karsog whereby he accepted the appeal of the defendant/respondent herein and also reversed the decree of mandatory injunction rendered by the learned Civil Judge (Senior Division), Karsog), District Mandi, H.P., whereby the latter Court directed the defendant to erect a boundary wall adjoining the land of the plaintiff. The plaintiff/appellant herein stands aggrieved by the judgment and decree of the learned Additional District Judge, Mandi, camp at Karsog. His standing aggrieved, he has therefrom preferred the instant appeal before this Court for seeking from this Court an order reversing the findings recorded therein.

(2.) Briefly stated the facts of the case are that the plaintiff is owner in possession of land comprising Khata Khatauni No.111 min/175, khasra No.21, measuring 0-3-0 bighas situated in Mohal Nagroan, Tehsil Karsog, District Mandi, H.P. (hereinafter referred to as the "suit land"). The house of the parties and other persons are situtated in the adjoining abadideh land comprising Khata/Khatauni No.135 min/220 min, Khasra No.19, measuring 0-9-8 bgihas situated in Mohal Nagroan/198. The aforesaid abadideh land bearing khasra No.19 is about 7ft. below the suit land of the plaintiff bearing khasra No.21. The defendant had constructed his house over a portion of Abadideh land bearing Khasra No.19. While raising construction, the defendant encroached upon 3 ft., area out of the suit land. The defendant had proposed to raise additional construction over abadideh land as well as on the suit land of the plaintiff. The proposed construction of the defendant was likely to erode the suit land of the plaintiff by erosion and thus, danger of land sliding of boundary wall of the plaintiff land was caused. Hence the suit.

(3.) The defendant contested the suit and filed the written statement, wherein preliminary objections have been raised qua resjudicata, estopple and maintainability. On merits, it was alleged that the defendant has not encroached upon the suit land. The defendant had constructed his new house on his own land bearing khasra No.19 about eight years back after dismantling the old house. The construction of the house was complete in the year 2003. The plaintiff had previously filed a similar civil suit against the defendant which was dismissed on 19.8.2003. In nutshell, the defendant refuted the entire case of the plaintiff and he prayed for dismissal of the suit.