DINA NATH AND ANOTHER Vs. PURAN CHAND

JUDGEMENT

(1.) This Civil Second Appeal is directed against the judgment and decree dated 15.03.2019 passed by the Principal District Judge, Udhampur ('first appellate court' for short) in Civil Ist Appeal (File No.12/appeal) whereby the judgment and decree dated 31.12.2014 passed by the Court of Sub judge (Special Mobile Magistrate), Udhampur (hereinafter referred to as trial court) has been reversed and the decree for perpetual injunction has been passed in favour of the respondent and against the appellants.

(2.) The respondent (who shall be hereinafter referred to as plaintiff for convenience) filed a suit for perpetual injunction restraining the appellants (who shall be hereinafter referred to as defendants for convenience) from causing any interference, obstruction or raising any sought of construction over the open space adjoining to and in front of the plaintiff's two shops built over Kh.No.8 situated at village Sangoor, Tehsil Udhampur. The decree for mandatory injunction directing the defendants to remove the construction material dumped over the suit land infront of plaintiff's two shops was also prayed for. The case set up by the plaintiff in the plaint is that by virtue of registered sale deed dated 27.11.1999, he has purchased two marlas of land out of Khasra No.8 situated at village Sangoor, Udhampur, upon which he constructed two shops seven years back. The aforesaid shops open towards the public road, commonly known as MES Filtration Plant Road existing on the southern side of the said shops. It is claimed that shutters of both the shops open towards the said road. It is pleaded that one of the aforesaid two shops has double shutter and one of its shutters opens towards public lane, known as, Jawahar Nagar Road existing on the western side of the plaintiff's shops. It is further pleaded that about 1-1/2 months before the institution of the suit, the defendants started digging foundation on their land for raising some construction and for that purpose during the late hours on the night of 03.10.2006, they uploaded trucks of construction material and dumped the same quite in front of the shutters of the plaintiff's aforesaid two shops and thus, caused interference and obstruction in the plaintiff's right of user and enjoyment of not only said open space forming part of the road, but, also of his two shops. The plaintiff submits that he immediately raised objection and requested the defendants to lift the construction material from the land and remove the obstruction, but, the defendants refused to do the needful and openly threatened that not only they would stock the material over the suit land, but, they will also raise construction as the open space existing towards the southern side of the plaintiff's shops is owned by the defendants. Having failed to persuade the defendants, the plaintiff claims that he was left with no option but to file the suit seeking decree of perpetual and mandatory injunction against the defendants.

(3.) The suit was resisted by the defendants. In the written statement filed by the defendants, the stand taken is that, though, it is true that the plaintiff has purchased two marlas of land out of Khasra No.8 (Kh.60 old), but, the said land is adjacent to one Kanal of land purchased by the defendant No.2 and one Shri Paras Ram, father-in-law of the defendant No.1 out of the same Khasra Number from the same owner. It is stated that the shops have been constructed by the plaintiff on his own land and the same are in existence for the last five years and not seven years as claimed by the plaintiff. The defendants also denied the claim of the plaintiff that the shutters of two shops open towards the public road known by the name of MES Filtration Plant Road. It is stated that taking benefit of absence of defendant No.1, who at the relevant point of time was on his duty at Reasi, the plaintiff opened shutters of his two shops towards vacant land of the defendants. In a nutshell, the claim put up by the plaintiff with regard to the open land in front of his shops has been vehemently refuted by the defendants. They have claimed the said open space to be the land owned and possessed by them.