V P MADHYAK Vs. INDER PAL & OTHERS

JUDGEMENT

(1.) The present regular second appeal has been maintained by the appellant/defendant No. 1 (hereinafter referred to as 'defendant No. 1') assailing the judgment and decree, dated 20.10.2006, of the learned District Judge, Shimla, H.P. passed in Civil Appeal No. 115-S/13 of 2005, upholding the judgment and decree, dated 01.10.2005, passed by learned Civil Judge (Senior Division) Court No. (II), Shimla, H.P., passed in Civil Suit No. 120-1 of 1999, whereby the suit of the plaintiffs/respondents No. 1 & 2 (hereinafter referred to as 'the plaintiffs') was decreed.

(2.) Brief facts giving rise to the present appeal are that the plaintiffs maintained a suit for permanent prohibitory and mandatory injunction against the respondents. The plaintiffs alleged that they are owners of land comprising in Khewat Khatauni No. 99/187, Khasra No. 340/297 (831 new), measuring 143.89 square meters, situate in Mauza Kanlog, Tehsil and District Shimla (hereinafter referred to as 'the suit land'). It was further averred by the plaintiffs that they had purchased the suit land vide sale deed No. 454, Book No. 1, dated 31.11994 from Smt. Lalita, Smt. Savita Kumari, Smt. Shobha Kumari, Shri Vipan, Shri Punit and Shiri Vaneet and Mutation No. 114, dated 23.11997, was entered in their favour. Defendant No. 1 also purchased adjacent plot, measuring 0.5 biswas, and he constructed a four storeyed building thereon. As per the plaintiffs, defendant No. 1 raised construction of his stairs on their land, thus the plaintiffs requested him to demolish the stairs, however, he asserted that the stairs would be used by both the parties. It was further alleged by the plaintiffs, that due to the construction of the stairs by defendant No. 1, their land became useless, unequal from all sides and house with proper alignment cannot be constructed thereon. It was alleged that the said stairs did not find mention in the map of defendant No. 1, which has been approved by defendant No. 2 (respondent No. 3 herein). As per the plaintiffs, defendant No. 1 did not remove the stairs, hence the present suit.

(3.) Defendant No. 1, by filing written statement, resisted and contested the claim of the plaintiffs. He took preliminary objections qua maintainability, estoppel and suppression of facts. On merits, defendant No. 1 denied the ownership of the plaintiffs. He contended that stairs have been built on his own land and in natural profile. No portion of the stairs falls in the suit land, thus the plaintiffs have no concern with the same. He further denied that no assurance qua use of the stairs had been given by him. As per defendant No. 1, the suit has been filed just to harass him.