THAKUR DASS Vs. SUNITA RAJPUT

JUDGEMENT

(1.) By way of instant petition filed under Article 227 of the Constitution of India, challenge has been laid to judgment dated 31.7.2018, passed by the learned District Judge, Kullu in Civil Misc. Appeal No. 4 of 2018, reversing the order dated 19.4.2018, passed by the learned Senior Civil Judge, Lahaul-Spiti at Kullu, H.P. in CMA No. 223-VI/2017, whereby an application filed under Order 39, Rules 1 and 2 CPC having been filed by the petitioner-plaintiff (herein after referred to as "the plaintiff"), came to be allowed and respondent-defendant (in short "the defendant"), was restrained from causing any interference in the suit land as described herein below.

(2.) Necessary facts shorn of unnecessary details, are that plaintiff filed a suit for permanent prohibitory injunction, restraining the defendant or her family members, agents , servants etc., from causing unlawful interference in the Verandah of his house/building situate on the land comprising of Khata Khatauni No.537 min/778, bearing khasra No.2101/1817, measuring 00-05-00 bighas (herein after referred to as "the suit land") and from causing any damage thereto, averring therein that he is owner in possession of the suit land along with his four storeyed house/building existing there on. Plaintiff averred in the plaint that inside the circumference of his house/building and under the eaves of its first floor, his personal stair case leading from Verandah in the ground floor to the first floor exists and as such, defendant has no right, title or interest therein. Plaintiff alleged that defendant threatened her to use his personal stair case to go to her house existing on khasra No. 2723/3330/1871/1 and also threatened to damage the Verandah on the first and ground floor of the suit land so as to pave way to her house. Plaintiff also averred that defendant filed false complaint against one Vijay Raj Gaur under Section 145 Cr.PC, before the learned Sub Divisional Magistrate, Kullu, alleging therein that he had been obstructing the path and had not been allowing her to bring the construction material through the said path. Her complaint was allowed by the SDM vide order dated 19.5.2016. Vijay Raj Gaur being aggrieved with the aforesaid order passed by the SDM, filed revision petition in the Court of learned Sessions Judge, Kullu, which is pending adjudication. Plaintiff alleged that since despite his repeated requests, defendant is hell bent to use his personal stair case, he was compelled to file aforesaid suit alongwith application under Order 39 Rules 1 and 2 CPC, seeking therein restraint order against the defendant.

(3.) Respondent by way of written statement as well as reply to the stay application filed under Order 39 Rules 1 and 2, refuted the aforesaid claim of the plaintiff and claimed that suit land stands recorded in the ownership of Thakur Sita Ram through its Kardar and same is in possession of the plaintiff as perpetual lessee. Defendant also claimed that plaintiff constructed suit building thereon in complete violation of the approved site plan and she had purchased 4 biswas of land comprised in Khasra No.2723/3330/1817/1, vide sale deed dated 29.4.2009, from one Khem Chand through his General Power of Attorney Ram Krishan Mahant, whereby right of path was expressly conferred upon her. She also claimed that Khem Chand also sworn an affidavit dated 25.8.2009, in support of her two Karam wide path and filed the same in the office of TCP Kullu, who subsequently vide order dated 11.3.2010 approved her plan, wherein the said path was duly recorded and shown in the approved site plan. Defendant claimed that path in question exists in between the houses of the plaintiff and Kamla Devi on the southern side and house of Dhanwanti Devi on the Northern side and connects NH-21 with her house/plot and same is only approach thereto.