SUNDER LAL Vs. RAVINDER SINGH

JUDGEMENT

(1.) The instant appeal is directed against the verdict recorded, upon, Civil Appeal No. 54 of 2004 by the learned District Judge, Kinnaur Civil Division at Rampur Bushahr, H.P., whereunder, he reversed the verdict recorded, upon, Civil Suit No. 67-1 of 2003, by the learned Civil Judge, (Junior Division), Rampur Bushahr, and, dismissed the plaintiff's suit.

(2.) Briefly stated the facts of the case are that the plaintiff filed a suit for permanent prohibitory injunction against the defendant on he averments that his brother Surinder Kumar and himself on 28.10.1998 had purchased 1/10 the share in the land described in Khasra No.1557 measuring 0-31-105 hectare situate in Up Mohal Singla for Rs.25,000.00 from Sh. Kesari Dass., Mutation on the strength of sale deed of 28.10.1998 stood sanctioned in favour of the plaintiff and his brother on 2.1.1999. After the execution of sale deed, Shri Kesari Dass had handed over possession of a definite and specific portion of Khasra No.1557 to the plaintiff. Shri Surinder Kumar had relinquished his share in sale deed dated 28.10.1998 in favour of the plaintiff. As such, the plaintiff ha been absolute owner in possession of 1/10th share in the suit property. In field map, the plaintiff had been recorded owner in possession of Khasra No.2872/1557/2/1 measuring 0-03-50 hectare. The plaintiff avers that he had constructed his house in the suit land described in Khasra No.2872/1557/2/1 in Feb., 2000. It has been pleaded that Shri Kesari Dass had sold a definite and specific portion of Khasra No.1557 to Sh. Tula Ram, Ishwar Lal, Kamla Devi and Shakuntla Devi vide field map of 31.7.1992. Thereafter Shri Ishwar Lal and Kamla Devi had sold their definite entire share in Khasra No.1557 to one Sh. Basant Lal. It is averred that on 20.9.2002, Sh. Basant Lal had sold his definite share of Khasra No.1557 to the defendant. Mutation on the strength of sale deed of 20.9.2002, had been attested in favour of the defendant on 24.9.2002. The defendant is stated to be owner in possession of Khasra No. 1557/1/1 as a result of partition between him, Tula Ram and Shankutla Devi. Mutation of partition in between the defendant, Tula Ram and Shakulta Devi had been attested on 7.10.2002. The defendant was stated to have started construction in his Khasra No. 1557/1/1 and had extended his construction into a portion of Khasra No. 2872/1557/2/1/ as per site plant Ex.PW3/A. The defendant had extended steel bars into a portion of land owned and possessed by the plaintiff. The plaintiff had requested the defendant not to encroach upon the suit land as per field map Ex.PW3/A but without any result. The plaintiff says that plot of defendant abutted NH-22 to the extent of 7 meters. As against this, the defendant had covered area measuring 13 meters abutting NH-22 in the area of Up Mohal Singla. The defendant was sought to be restrained from encroaching upon the suit land by issuance of a decree of permanent prohibitory injunction.

(3.) The defendant contested the suit and filed written statement, wherein, he had admitted the ownership and possession of the plaintiff upon land bearing Khasra No.2872/1557/2/1. The plaintiff had not completed construction of his house in Feb., 2000. It had been stated that the plaintiff had started construction of his house in his own land in November, 2002. The plaintiff had started the construction without the sanction of the competent authority. The defendant had stated having purchased khasra No.1557/1/1 from Sh. Basant Lal. The defendant had denied of his having in any way encroached upon Khasra No.2872/1557/2/1. The defendant had averred that the plaintiff wanted access from his house to NH-22 through the land of the defendant. The house of the plaintiff was not directly approachable from NH-22. As against this, the plot and house of the defendant abutted NH-22. When the defendant had refused to provide direct access to NH-22 to the plaintiff, false and frivolous suit had been instituted against him by the plaintiff. The plaintiff was not entitled to any relief much less to the discretionary relief of permanent and prohibitory injunction.