KEWAL KRISHAN & ANOTHER Vs. AMRIT LAL

JUDGEMENT

(1.) The present regular second appeal is maintained by the appellants/defendants (hereinafter called as "the defendants") against the respondent/plaintiff (hereinafter called as "the plaintiff") assailing the judgment and decree dated 25.11.2010, passed by learned Additional District Judge, Una, District Una, H.P. in Civil Appeal No. 67 of 2007, whereby the judgment and decree passed by learned Civil Judge (Senior Division) Una, District Una, H.P. in Case No. 241 of 2000, dated 01.10.2007, was upheld by the learned Additional District Judge, Una.

(2.) Briefly stating the facts giving rise to the present appeal are that the plaintiff maintained a suit against the defendants wherein it is pleaded that the suit land is jointly owned and possessed by the parties alongwith others and a passage denoted by letters ABCD shown with red ink in the spot map, annexed with the plaint, passes through Khasras No. 3188 and 3186, which is part of the suit land. A drain marked with letters DEFG also shown in red ink in the spot map, annexed with the plaint, passes through the land bearing Khasras No. 3188 and 3186, which is also part of the suit land. As per the plaintiff, some part of the suit land is covered under abadi deh (inhabited area). The above passage is common and in use for the last more than 30 years and the same is only access to the house of the plaintiff. The defendants by way of collecting building material on the spot have obstructed the path. The defendants turned deaf ear to the request of the plaintiff to clear the path and remove encroachment upon the same, but of no avail. Thereafter the learned Civil Court granted the stay order in favour of the plaintiff, however, despite the stay orders of the Court the defendants illegally and unauthorizedly raised construction of kitchen, bath room, stairs and projection over the land on the portion marked with letters HIJKLM (shown in red ink in the spot map, annexed with the plaint). Due to the said construction the natural flow of the rain water has also been hindered resulting prejudicial to the rights of the plaintiff. The cause of action accrued to the plaintiff when the defendants stacked the building material on the spot and when he paid no heed to the requests of the plaintiff to clear the path and remove the encroachment upon the part of the suit land.

(3.) The defendants resisted the claim of the plaintiff by filing written statement wherein they had taken the preliminary objections with regard to maintainability of the suit, undervaluation of the suit, jurisdiction etc. However, on merits the possession and ownership of the suit land was admitted to be joint, but it is denied that the possession is also joint. It is pleaded that since long the parties are in separate possessions on separate parcels of the land. They have denied the passage, as shown by the plaintiff as well as further denied the existence of path, as shown by the plaintiff. It is further averred by the defendants that the parties are in separate possession of the suit land. As per the defendants, the site plans submitted by the plaintiff are incorrect and the correct maps were submitted by the defendants. The defendants have denied the existence of the path on Khasras No. 3183 & 3186 and blocking the same. The rasta (path) is in existence only on Khasra No. 3183 that too on northern side, i.e. the main street of the village and the same is independent path to the house of the plaintiff. The defendants have denied the existence of drain and submitted that there was old abadi (inhabitation) of defendants over Khasras No. 3188 and 3186. The defendants started raising new construction only where the old abadi (inhabitation) existed. The defendants have also averred that they have not raised any new construction after injunction order of the Court and the site over which the construction work was got stayed by the plaintiff is abadi (inhabitation) belonging to the defendants. The defendants have denied blocking the course of water, as the same never flowed towards the site shown by the plaintiff. It is averred that at the time of spot inspection the plaintiff agreed to withdraw the suit, subject to the defendants' laying underground pipeline through the agreed site. Despite laying of the pipes, the plaintiff is still continuing with the litigation.