VED PRAKASH Vs. JAGDISH RAM

JUDGEMENT

(1.) The present regular second appeal is maintained by the appellant/defendant (hereinafter called as "the defendant") against the respondent/plaintiff (hereinafter called as "the plaintiff") assailing the judgment and decree dated 27.10.2005, passed by learned District Judge, Kangra at Dharamshala, H.P. in Civil Appeal No. 50-G/XIII/2005, whereby the judgment and decree passed by learned Civil Judge (Junior Division) Court No. 2, Dehra, District Kangra, H.P. in Civil Suit No. 83/99/98, dated 30.03.2005, was set-aside by the learned District Judge, Kangra at Dharamshala, H.P., and the suit was decreed.

(2.) Briefly stating the facts giving rise to the present appeal are that the plaintiff filed a Civil Suit in the Court of first instance seeking permanent prohibitory injunction restraining the defendant from changing the nature of the suit land, raising new construction thereon and encroaching upon the path ('Deodi'), depicted by letters ABCD in the site plan. As per jamabandi for the year 1995-96, the suit land is situated in Khata No. 17, min, Khatauni No. 62 min, Khasra No. 90, measuring 0-11-16 hectares, in Mohal Kaseli, Mauza Ghallour, Tehsil Dehra, District Kangra, H.P. The plaintiff has simultaneously claimed mandatory injunction directing the defendant to remove eave ('chajja'), which is depicted in the site plan by letters AHIC and the iron stairs reared over the suit path. The plaintiff anchored his reliefs on the basis that the land is joint inter se the parties and over the suit land there exists their abadies (inhabitations). Since time immemorial the path (Deodi) is common and is in use by the parties for ingress and egress to their residences. However, the defendant, by encroaching upon the suit path, started construction and threatened to build his stair case thereon. The action of the defendant was likely to constrict the path (deodi) and during the pendency of the suit in the month of June, 1998, the defendant constructed eave (chajja) measuring 6 inches in width and 22 feet in length towards the suit path, which is demonstrated in the spot map by letters AHIC. Thereafter in third week of November, 2002, the defendant reared iron stairs over the suit path. Despite repeated requests, the defendants did not refrain from his unlawful acts and the plaintiff has no other alternative path to his residence.

(3.) Conversely, the defendants, by way of filing written statement to the amended plaint, controverted the pleadings made therein. The defendants raised preliminary objections qua cause of action, locus standi, estoppel, maintainability, valuation and description etc. On merits, the defendants averred that the parties to the suit have separate and independent houses and the share of the plaintiff comes to about three and one-fourth marlas in the suit land and the old house of the plaintiff is also on the suit land, which is on about two and half marlas of land. It is also averred that plaintiff, about 4 to 5 years back, reconstructed his new house where his old house existed by exceeding his share, the plaintiff covered 10 marlas of land. In the event of partition, the plaintiff has to cede his possession to the defendant and other co-sharers which is in excess. It is further averred that defendant did not raise any construction by encroaching upon the disputed common path and the construction was raised by his brother, Shri Vipin Kumar. The double storeyed old house with veranda was constructed by the father of the defendant, which collapsed 2 to 3 years back. The brother of the defendant raised construction over a part of the collapsed house and the foundations of the old house are still visible on the spot The new construction was not reared on the disputed path and the same is still in existence and the path has not been constricted at all. It is also denied that iron stairs were constructed over that path. It is also denied that plaintiff has no other alternative path and, in fact, plaintiff has access from all sides, which are in use by the parties and their family members. The defendants prayed for dismissal of the suit.