KALAG RAM Vs. KAMLA DEVI

JUDGEMENT

(1.) By way of this appeal, the appellant has challenged the judgment passed by the Court of learned Additional District Judge (II), Shimla, Camp at Rohru, H.P., in Civil Appeal No.RBT-52-R/13 of 2014/2011, titled as Smt. Kamla Devi Versus Kalag Ram, decided on 11.09.2014, vide which the appeal filed against the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Court No.II, Rohru, District Shimla, H.P. in Civil Suit No.29/01 of 2010/05, titled as Smt. Kamla Devi Versus Kalag Ram, stood allowed and the matter was remanded back to the learned trial Court to decide the same afresh after carrying out fresh demarcation of the suit land through an officer not below the rank of Assistant Collector, 1st Grade.

(2.) Brief facts necessary for the adjudication of the present appeal are that a suit for permanent prohibitory injunction was filed by the present respondent/ plaintiff (hereinafter to be referred as 'plaintiff') against the present appellant/defendant (hereinafter to be referred as 'defendant'). The case of the defendant was that she was owner in possession of the suit land, upon which she had raised a five storeyed building. Defendant was owner of the adjoining land. On the eastern side of the building of the plaintiff, there was a path which belonged to the plaintiff. Defendant by taking undue advantage of the simplicity of the plaintiff, started encroaching upon the said passage by constructing a retaining wall. Though, on 07.06.2005, said attempt of the defendant was throttled, however, he attempted encroachment again on 08.06.2005. Defendant was requested not to do so, but he did not accede to the request of the plaintiff, hence, the suit.

(3.) The suit was resisted by the defendant inter alia on the ground that there was no passage as alleged by the plaintiff existing on the eastern side of the building owned by her and the passage which was existing belonged to the defendant. Attempt to encroach upon alleged passage of the plaintiff was denied. The case of defendant was that he was carrying out repairs upon the path which belonged to him.