MOHAN LAL Vs. RAMESH CHAND

JUDGEMENT

(1.) The present regular second appeal is maintained by the appellant, who was the defendant before the learned Trial Court (hereinafter to be called as "the defendant"), laying challenge to the judgment and decree, dated 31.07.2007, passed by learned District Judge, Kangra at Dharamshala, in Civil Appeal No. 30-G/XIII/2005, whereby judgment and decree, dated 31.01.2005, passed by the learned Civil Judge (Jr. Division), Court No. 2, Dehra, District Kangra, H.P., in Civil Suit No. 137 of 2000, was set aside.

(2.) Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that the respondent, who was the plaintiff before the learned Trial Court (hereinafter to be called as "the plaintiff") instituted a suit against the defendant, under Sections 38 & 39 of the Specific Relief Act for perpetual and prohibitory injunction. He prayed that the defendant be restrained from digging foundations, raising construction and changing nature of the land, shown in site plan, marked ABCDEFGH and also from blocking the path, as shown in pink colour, in the site plan, comprised in Khata No. 158 min, Khatauni No. 164 min, Khasra No. 384, measuring 0-07-29 hectares, as described in the copy of Jamabandi for the year 1997-98, situated in Mohal and Mauza Kohasan, Tehsil Dehra, District Kangra, H.P. (hereinafter to the called as "the suit land"). The plaintiff has also claimed a decree for mandatory injunction, directing the defendant to restore the land to its original position by demolishing the structure, if the defendant succeeded in raising construction over the said portion of the land.

(3.) By filing written statement, the defendant resisted and contested the suit of the plaintiff and raised preliminary objections qua maintainability and estoppel. On merits, the defendant has admitted the suit land to be Abadi Deh, however he termed rest of the averments made in the plaint to be incorrect. As per the defendant, the plaintiff is not a co-sharer in the suit land nor does any path passes through the suit land. He has contended that his house is in existence over the suit land, thus he has every right to raise construction thereupon. He has further contended that the foundation of his house in the suit land has been laid down prior to the filing of the present suit, without there being any objection on the part of the plaintiff. As per the defendant, the suit land is Abadi land, which was old Abadi of the defendant, on which the new foundation has been raised by him. Lastly, the defendant prayed for dismissal of the suit.