KIRSHN KUMAR Vs. HEMANT

JUDGEMENT

(1.) Appellant-defendant has filed this second appeal assailing the judgment and decree dtd. 27/7/2016 passed in Civil First Appeal No.06/2013 by Additional District Judge, Bansur, District Alwar, affirming the judgment and decree dtd. 15/2/2013 passed by Civil Judge (Junior Division), Bansur, District Alwar in Civil Suit No.51/09 whereby following decree has been passed against the appellant-defendant:-

(2.) It appears from the record that the dispute between parties is in relation to a gali measuring 2.6 feet and 23 feet. This gully exists at the first floor between the shops of plaintiff and defendant No.1. In fact, there is no dispute about the length of gully being 23 feet rather the dispute is that the width of gali is of 2.6 feet or 2.3 feet. As per plaint, width of gully is 2.6 feet but the defendant has encroached upon the portion of gali by 3 inch whereas, as per written statement, the width of gali is 2.3 feet and on three inch portion, plaintiff has made encroachment. The trial court, in order to adjudicate the aforesaid dispute arrived at between parties under their rival pleadings, considered the evidence adduced by both parties. Apart from the plaintiff's evidence, the trial court relied upon the documents of sale deed itself (Exhibit-1) through which defendant purchased the shop. In the sale deed (Exhibit-1) itself the width of gali, situated in front of the defendant's shop, has been mentioned as 2.6 feet. That apart, defendant and his witness D.W.2 themselves admitted that the width of gali is 2.6 feet. The explanation of the defendant to this effect is that in the sale deed a wrong mentioning about the measurement of this gali was made, later on it transpired that at site the width of gali in front of his shop is only 2.3 feet and the 3 inch portion has been encroached upon by plaintiff and not by defendant. However, this explanation/defense of the defendant was not found proved by his evidence nor the defendant filed any counter claim against the plaintiff.

(3.) The trial court, on appreciation of evidence of parties, more particularly the sale deed (Exhibit-1), concluded that the gali of 2.6 feet width be kept intact and unhindered for the purpose of egress/ingress through this gali and the encroachment over this gali by defendant, if any, the same be removed.