MUNNA Vs. GIRISH & ANR.

JUDGEMENT

(1.) THIS second appeal has been filed against the judgment and decree dated 08.09.2008, passed by the learned Additional District Judge, Fast Track No. 1, Dholpur whereby the appellant's regular first appeal against the judgment and decree dated 31.01.2006, passed by the learned Civil Judge (Jr. Div.), Dholpur, has been dismissed. The brief facts of the case are that respondent -plaintiff (hereinafter 'the plaintiff) filed a civil suit for permanent injunction against the original defendant Chimman, the father of the appellant -defendant Munna, (hereinafter 'the defendant') in the Court of Civil Judge (Jr. Div.), Dholpur. It was averred in the plaint that the plaintiff and his brother Dinender Kumar @ Dinesh Kumar (respondent No. 2) purchased a parcel of land ad measuring 125 X 25 ft. situate in village Mania from Sunder Singh and Ramswaroop etc. vide registered sale -deed dated 24.11.1964. Subsequently, after getting permission from the Gram Panchayat, Mania, the plaintiff constructed two shops on the western side of the said land, two rooms back onto of the shops and a 'bramda' as well as a 'chabutra' in front of the shops. It was stated that there had been a public way (rasta) towards west side of the said plaintiff's land, but in the year 1969 Chimman, the father of the defendant first encroached on part of the 'rasta' and constructed two shops thereon. Thereupon the Gram Panchayat, Mania, served a notice upon Chimman with regard to his encroachment and illegal construction, whereupon he admitted that he had raised construction by encroaching upon some part of the kharanja of the Gram Panchayat. It was stated that owing to fresh encroachment and unauthorised construction, the 12 wide way towards west side of the plaintiffs land, used since about the last 30 years, was being obstructed. As on 05.01.1995 the defendant had again unlawfully dug a foundation on the said 12' way blocking the plaintiff's access to his property and was in the process of making constructions afresh on the disputed land, a cause of action had arisen. On the aforesaid cause of action, the plaintiff prayed in the suit that the defendant be restrained by a decree of permanent injunction from raising any construction on the disputed land.

(2.) THE defendant filed a written statement of denial and stated that the plaintiff and his brother did not get any permission from the concerned authority for constructing their shops. He also denied the allegation of having earlier raised or further intending to raise any construction on the public way. He further denied that either the Gram Panchayat had served any notice upon him on the issue of obstructing a public way, or he had earlier admitted the fact of having raised any construction by encroaching upon any part of kharanja of the Gram Panchayat. It was stated that no order was passed for his removal from alleged encroached areas. It was further stated that between the northern corner of the chabutra of the plaintiff and the house of one Madan Lal, the existing way of only 4' wide, whereas it was 5 wide between the southern corner of the chabutra of the plaintiff and his property & the properties of Munshi Lal and Ram Prakash. It was stated that there was no obstruction in the public way as alleged. The defendant also denied the fact that there existed 12' wide public way (rasta) towards west side of the property of the plaintiff. He also denied the allegation of digging any foundation or raising any construction on the land of the public way ownership whereof vested with the Panchayat.

(3.) IN support of his case, the plaintiff got examined himself as PW -1, Devi Charan as PW -2, & Radheshyam as PW -3. The defendant got examined himself as DW -1 and Siya Ram as DW -2 in defence.