KHEM LATA Vs. RAM DASS AND ANOTHER

JUDGEMENT

(1.) By way of this appeal, appellant/defendant has challenged the judgment and decree passed by the Court of learned Additional District Judge, Mandi, District Mandi, camp at Karsog, in Civil Appeal No. 34 of 2007, dated 07.08.2008, vide which learned Appellate Court while upholding the judgment and decree passed by the court of learned Civil Judge (Sr. Divn.) Karsog, District Mandi, in Civil Suit No. 68 of 2006, dated 04.05.2007, dismissed the appeal so filed by the appellant.

(2.) This appeal was admitted on 23.08.2010 by this Court on the following substantial question of law:

(3.) Brief facts necessary for the adjudication of the case are that the respondents-plaintiffs (hereinafter referred to as 'plaintiffs') filed a suit for permanent prohibitory and mandatory injunction to the effect that land comprised in Khata Khatauni No. 221/381, Khasra No. 1455/226, measuring 1-5-6 bighas situated in Mauza Sanarli, Tehsil Karsog, District Mandi, H.P. was recorded in the ownership and possession of plaintiffs and land comprised in Khata Khatauni No. 144/177 Khasra No. 1728/209, 1729/209, 1730/209 and 1731/209, Kita 4 measuring 0-13-17 bighas, situated in Mauza Sanarli, Tehsil Karsog, District Mandi, H.P was recorded in the ownership and possession of defendant and that the land of the plaintiffs was on the upper side on which plaintiffs had constructed their house, cow-shed, latrine, and septic tank and there also existed lemon, chestnut, guava and almond trees whereas land of defendant mentioned above was 4-5 feet on the lower side of land of plaintiffs. Defendant had purchased the said land about 3-4 years ago whereas plaintiffs were enjoying their suit property as owners in possession for last more than 30 years. As per plaintiffs, defendant had started excavation work (digging work) over land comprised in Khasra No. 1729/209 and 1730/209 adjoining to the land of plaintiffs w.e.f. 16.08.2005 through a JCB machine to bring the level of land down to road level and plaintiffs had objected to it on the ground that there will be erosion of land of the plaintiffs which would cause imminent danger to the property of the plaintiffs. It was further the case of the plaintiffs that defendant and her husband requested the plaintiffs that after cutting up to basement they will raise Pakka protection wall and said commitment was made by the defendant and her husband in the presence of witnesses, on the basis of which excavation work was permitted to be completed. As per plaintiffs, after completion of excavation they requested the defendant and her husband to protect the suit land by raising retaining wall and though assurances were given in this regard by the defendant, however, nothing was done.