SURESH KUMAR CHANDAN Vs. SHER SINGH

JUDGEMENT

(1.) This is a regular second filed by the appellants against the judgment and decree of the court of learned District Judge, Shimla, dated 23.2.21995, vide which he set aside the judgment and decree of the court of learned Sub Judge, Court No.II, Shimla, decreeing the suit of the appellants for permanent injunction as well as for mandatory injunction.

(2.) Briefly stated the facts of the case are that the appellants as plaintiffs filed a suit for permanent prohibitory injunction as well as for mandatory injunction alleging that the defendant had encroached upon the suit land by raising three pillars over part of the land. The plaintiffs alleged that on 21st June, 1984, when they visited their plot, they found that the defendant had excavated a portion of the land with a view to raise the pillars which were raised thereafter. Hence suit for permanent injunction as well as for mandatory injunction for demolition of the pillars filed by the plaintiffs.

(3.) Defendant alleged that he was the owner of the adjoining land and that he had raised pillars in the year 1980 over his own land and at that time no objection was raised by the plaintiffs. The suit was tried by the learned Trial Court, who found that the defendant had encroached over the suit land to the extent of 31 sq. yards 6 sq. ft. and accordingly the suit was decreed for permanent injunction as well as for mandatory injunction. An appeal was preferred by the defendant/respondent and during the pendency of the appeal, the parties agreed to the appointment of a Local Commissioner, who was appointed by the Court, who submitted his report and after taking into consideration the report of the Local Commissioner that no encroachment was found on the suit land, the appeal was accepted and the suit was dismissed.