ILLA PANDEY Vs. JAI PARKASH & ORS

JUDGEMENT

(1.) By way of the present appeal, the appellant has challenged the judgment passed by the Court of learned District Judge, Sirmaur District at Nahan, in Civil Appeal No.54-CA/13 of 1999, dated 12.3.2012, vide which, the learned lower Appellate Court, has affirmed the judgment and decree passed by the then learned Sub Judge 1st Class, Nahan, District Sirmaur, in Civil Suit No.7/1 of 1998, dated 2.8.1999.

(2.) Material facts necessary for adjudication of this Regular Second Appeal are that appellant/plaintiff (hereinafter referred to as 'plaintiff') maintained a suit for permanent prohibitory and mandatory injunction against the respondents/defendants (hereinafter referred to as 'defendants') alleging that plaintiff is co-owner in exclusive possession of land comprised in Khata No.8, Khatauni No.14, Khasra No.968 and 972, measuring 120-18 square meters and in joint use and occupation of landed property, comprised in Khata No.8, Khatauni No.11, Khasra No.938, 973 to 980, 1030 and 958, joint stairs to roof, 961 'dehleej/deodi' entrance room, 971 joint path/way measuring 54- 37 square meters, situated at Mohal Naya Bazar, Nahan, District Sirmaur, (H.P) (hereinafter referred to as 'suit land') . It is further averred that earlier her father and thereafter plaintiff holds and enjoys a water connection issued by the HP PWD (I & PH) Department, Nahan, which water connection bearing account No.263/568, which goes to her exclusively possessed house, since more than 40 years. The main entry to the house of co-sharers is through a 'deodi/dehleez' outside of which, there is engraved the name of house 'BHARGAW BHAWAN', situated in Khasra No.961 and is attached with a joint path to the entire house, comprised in Khasra No.971 and there are joint stairs to the roof in Khasra No.958 and are in existence since more than 40 years and all co-sharers have been enjoying them considering their utility and nature.

(3.) The suit of the plaintiff was resisted and contested by the defendants by filing written statement, wherein preliminary objections on the ground of maintainability, cause of action and suit is liable to be dismissed. On merits, it is admitted that the suit property was initially joint between the parties, but the same has been partitioned, vide mutation No.93, whereas the suit land was kept in joint, but it is asserted that the plaintiff had a separate passage for ingress and egress to the portion allotted to her and she had never been using the suit land, as a joint owner and the same has been in exclusive use of the defendants. Further, Raja Ram, one of the co-owners has already sold his 1/3rd share in the suit property known as 'Bhargwa Bhawan' to defendant No.2-Siri Niwas and the water connection is being used not only by the parties, but the same is being used by the tenants also. Prior to purchase, the defendants were tenants in other portion. The defendants have every right to use the path, which is in dispute, but the defendants have also entitled to use the other path.