SUDESH RANI & OTHERS Vs. Y P VERMA

JUDGEMENT

(1.) The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff's suit for rendition, of, a decree for declaration, as well as for, rendition of a decree for permanent prohibitory injunction qua the suit khasra number(s), was, hence decreed.

(2.) Briefly stated the facts of the case are that the the suit land as detailed in the plaint is recorded to be owned and possessed by various co-sharers including the predecessor-in-interest of the plaintiff Smt. Asha Devi. Smt. Asha Devi was owner to the extent of ¼ share in the joint land. The plaintiff purchased land comprised in khasra No. 244, 245, 246 and 265, out of the suit land, measuring 412 square metres from Smt. Asha Devi vide sale deed No. 231 of 20.4.1987 and vide another sale deed No.232 of 20.04.1987. He purchased the land comprised in Khasra No.263 to the extent of ¼ share measuring 49 sq. meters with all rights, title and interest. It has been alleged that the suit land is still joint between the parties. There exists a path over the part of the suit land passing from Khasra Nos. 261 and 256 to be called as path which provides passage to the plaintiff in Khasra No.265. The path leads down to Khasra No. 246 which is a joint land, therefore, the defendants had no right, title or interest to change nature of the path or to raise ay construction thereon. It has been averred that the path is being used by the plaintiff and prior to him the predecessor-in-interest for egress and ingress, openly, peacefully and continuously as a right. The path is being used for the last more than 40 years and thus the right has matured into legal right of easement. It has been alleged that the defendants have started raising construction in such manner that the level of the path adjoining to the land of the plaintiff in Khasra No.246 is being raised in such a manner that it will cause obstruction in the path in question and the plaintiff will suffer irreparable loss. It has been averred that on 19.8.1998, the plaintiff visited the spot and found that the defendants have collected bricks and construction material when defendant No.2 Sudesh Rani revealed that they will level the path and construct blind wall on the path to prevent the plaintiff for his egress and ingress tot he land in Khasra No.246. Hence the suit.

(3.) The defendants contested the suit and filed written statement, wherein, they have submitted that the suit land has already been partitioned vide document dated 4.8.1936 in between the predecessors-in-interest of the plaintiff and the defendants and other co-owners, which was complete and effective partition by metes and bounds. The partition has been depicted in site plan which was signed by the parties and registered with Sub Registrar, the then Raja of Bhagat State Solan. It has also been averred that the possession of the portion of the suit land was taken by the then co-owners and since then they are continuously and uninterruptedly in possession of those portions shown by different colours in the site plan. It has also been submitted that at the time of bandobast jadid except for some minor discrepancies, the land depicted in the site plan had been denoted by various Khasra numbers in the misal hakiyat and later jamabandis. It has also been averred that the plaintiff purchased the land through two sale deeds from Asha Devi but the sale deed No.232 of 20.4.1997 is illegal and void which has already been challenged in another civil suit whereby it has been alleged that Smt. Asha Devi had never been in possession of land comprised in Khasra No. 263, the portion of which has been purchased by the plaintiff. It has been submitted that the predecessor-ininterest of the plaintiff could sell the land which has fallen to her share on account of succession from her husband late Sh. Amar Nath, who was a original signatory to the partition deed as well as the site plan. It has been denied that the plaintiff is entitled to hold and enjoy the entire property. It has been submitted that the path had fallen in the share of Amar Nath, predecessor-in-interest of Ahsa Devi and the present plaintiff has duly been described and depicted in the partition deed and site plan and the plaintiff is entitled to the said path only which is shown in the green colour and of the width of four feet and the plaintiff cannot claim on any other land. It has also been submitted that the path in Khasra No.261 and 251 is not joint and is distinct path going upto khasra No.256 as shown in black colour in the site plan. It has been denied that the path in question is being used for the last more than 40 years. The rest of the averments made by the plaintiff has been stated to be wrong, hence, prayer is made for dismissal of the plaintiff's suit.