OMVEER SINGH Vs. RADHEY SHYAM

JUDGEMENT

(1.) This second appeal is preferred against the judgement and decree dtd. 14/1/2015 passed by the learned Additional District Judge, Dholpur (for short-'the learned appellate court') in Civil Appeal no.(CAR) 10/2014 whereby, while dismissing the appeal, the judgement dtd. 14/10/2011 passed by learned Civil Judge (Jr. Division) No.1, Dholpur (for short-'the learned trial court') partly decreeing the Civil Suit no.44/2009 filed by the respondent no.1/plaintiff (for short-'the plaintiff') against the respondent no.2/defendant (for short-'the defendant'), has been upheld. The relevant facts in brief are that the plaintiff filed a suit for declaration and permanent injunction stating therein that towards western side of his ancestral house situated in Churiman Ki Bagichi, Kayasthpara, Dholpur, house of the defendant exists. It was averred that there is a chabutara (platform) marked as 'ABCD' in the site plan annexed with the plaint under his ownership and possession which was being used by him since long. Alleging that the defendant has threatened him to open his door, window, ventilation and drainage towards his platform, the decree as aforesaid was prayed for.

(2.) The defendant in his written statement claimed his ownership and possession over the subject property. On the basis of pleadings of the parties, the learned trial court framed three issues. After recording evidence of the respective parties, the learned trial court held that the plaintiff could not establish his ownership over the subject property; but, while deciding the issue no.2 in his favour, the decree of permanent injunction was passed. The judgement and decree dtd. 14/10/2011 was assailed by the present appellant, purchaser of the house of the defendant through registered sale deed during pendency of the suit, which has been dismissed by the learned appellate court vide its judgement and decree dtd. 14/1/2015.

(3.) Assailing the impugned judgement and decree, the learned counsel for the appellant submitted that the learned courts did not appreciate that the plaintiff could not establish his possession over the subject platform. He submitted that from the evidence on record, it was established that the subject property is only way available to him to have access to his residential house. He, therefore, prays that the civil suit be allowed, the judgement and decree dtd. 14/1/2015 be quashed and set aside and the suit be dismissed.