SARLA DEVI Vs. MADAN SINGH & ORS

JUDGEMENT

(1.) Judgment dated 17.8.2017 passed by learned District Judge, Kangra at Dharamshala in Civil Miscellaneous Appeal No. 06/2015 is under challenge in this petition.

(2.) The petitioner herein is the plaintiff. Since an application, she filed along with the Civil Suit Under Order 39 Rules 1 & 2 CPC (registered as CMA No. 114 of 2011) has been dismissed by learned Civil Judge (Jr. Divn.) Kangra, vide order Annexure P-3 and as the order so passed has been affirmed by learned lower appellate Court vide the impugned judgment, therefore, the petitioner (hereinafter referred to as the plaintiff) has assailed the legality and validity thereof on the grounds inter alia that the same is highly unjust, illegal and contrary to law as well as facts of the case. Both courts below allegedly have not considered the pleadings of the parties and material available on record in its right perspective. The factum of the plaintiff having raised no construction over the suit land or any portion thereof whereas respondent-defendant No. 1 Madan Singh has started raising construction over best portion thereon has not been taken into consideration.

(3.) The bone of contention in the present lis is land entered in Khata No. 19 min, Khatauni No. 21 min, Kh. Nos. 223, 235, 237, 238, 385, 389, 390 and 397 measuring 01-17-78 hectares, situated at Mohal Jatehar, Mauza Jalari, Tehsil and Distt. Kangra, H.P. The same is joint of the parties to the suit. The respondent-defendant No. 1 allegedly has started raising construction of his house over six marlas of land entered in Kh. No. 238 i.e. measuring 01-17-78 hectares whereas his share in the said field is only to the extent of 0- 02-05 hectares. The land being joint of the parties, the said defendant allegedly has no right to change its nature. The response of the respondents-defendants, however, is that the plaintiff herself has constructed her house over a portion of the joint land and now when defendant No. 1 has started raising construction of house, it is she alone who has objected to it.