SUSHILA DEVI Vs. ANKUR DUTT AND ANOTHER

JUDGEMENT

(1.) Instant Regular Second Appeal filed under Section 100 CPC is directed against judgment and decree dated 27.12.2007 passed by the learned District Judge, Kangra at Dharamshala, Himachal Pradesh in Civil Appeal No. 159-G/XIII of 2005, affirming judgment and decree dated 26.10.2005 passed by the learned Civil Judge (Senior Division), Dehra, District Kangra, Himachal Pradesh, in Civil Suit No. 264/1999, whereby suit for perpetual prohibitory injunction and for possession having been filed by the respondents-plaintiffs (hereinafter, 'plaintiffs') came to be decreed.

(2.) Briefly stated facts as emerge from the record are that the plaintiffs filed a suit for perpetual prohibitory, mandatory injunction and also for possession of land comprised in Khata No. 42 Khatauni No. 80, Khasra No. 1036, measuring 62-65 square metre (hereinafter, 'suit land') situate in Mohal Jawalamukhi, Tehsil Dehra, District Kangra, Himachal Pradesh, averring therein that the suit land is owned and possessed by him and the land of the defendants comprised in Khasra No. 1023 is adjoining to the land of the suit land. Plaintiffs further averred in the plaint that he is having his house on suit land and also on the land comprising of Khasra No. 1017. Some portion of the suit land was vacant, which was adjoining to the defendant's land in Khasra No. 1023. As per plaintiff, in the second week of October, 1999, defendant without getting the map sanctioned from local authority, threatened to raise construction on the suit land as shown in the site plan by letters 'ABCD'. An application was moved by the plaintiff before the Nagar Panchayat, Jawalamukhi on 11.10.1999 intimating therein factum with regard to threats extended by the defendant to encroach the suit land. Plaintiff had also applied for the demarcation of his land before Revenue Officer and accordingly, suit land was demarcated by Tehsildar on 15.10.1999 in the presence of the defendant and her father. During demarcation it was found by the Kanungo that there was vacant land in the suit land and Pakka points were fixed, however, defendant objected to the demarcation. The report was accepted by Tehsildar Dehra on 26.10.1999. After demarcation on 16.10.1999, the defendant forcibly raised septic tank on the portion 'ADCF' shown in the site plan and also kept one outlet for over flow from the septic tank in the vacant land of the plaintiff. Since defendant failed to stop the construction over the suit land despite plaintiff's requests, he was compelled to file the instant suit, praying therein for a decree of perpetual prohibitory injunction restraining the defendants from raising any construction over the land as reflected by letters, 'ABCD' in the site plan. Plaintiff also sought a decree for mandatory injunction for demolition and removal of the structure in the form of septic tank and foundation dug by the defendant during the pendency of the trial. Apart from above, plaintiff also prayed for a decree for possession of encroached portion of suit land, comprising of Khasra No. 1036, by way of demolition of structure.

(3.) Defendant by way of written statement refuted the aforesaid claim put forth by the plaintiff. Defendant denied that there is any vacant land of plaintiff adjoining to her land. She also denied the allegations of threats, if any, extended by her in October, 1999. Defendant also denied the allegations of encroachment made by her on any portion of suit land, while raising construction of septic tank and foundation. Defendant, while denying allegations of raising construction after demarcation report dated 16.10.1999, specifically averred that she took demarcation on 3.7.1999 of her land in Khasra Nos. 1023 and 1022, in the presence of plaintiff's son namely Jitender Pal, which was accepted by Tehsildar on 15.7.1999. As per defendant, lintel of septic tank was laid on 20.7.1999 and construction was completed in September, 1999. Defendant also denied that during the pendency of the suit and despite visit of local commissioner and stay order, construction was raised by her over the suit land. Defendant, while refuting contention of the plaintiff that no permission was sought from the authorities concerned before raising construction, submitted that map of the construction in question was submitted by her before Nagar Panchayat, Jawalamukhi, much prior to present suit and charges for sanctioning map were also deposited.