CHHITARLAL Vs. SHEONARAYAN @ SHIVNARAYAN & ANOTHER

JUDGEMENT

(1.) The appellant-defendant is aggrieved by the judgment and decree dated 10.5.2012 passed by Civil Judge (Jr. Div.), Baran, District Baran, where the learned Magistrate has allowed the suit for declaration of permanent and mandatory injunction in favour of respondent-plaintiff. The appellant-defendant is equally aggrieved by the judgment and decree dated 31.7.2013 passed by District Judge, Baran, whereby the learned Judge has upheld the judgment and decree dated 10.5.2012, and has dismissed the appeal filed by the appellant.

(2.) The brief facts of the case are respondent-plaintiff, Sheonarayan alias Shivnarayan, filed a suit for declaration and for permanent and mandatory injunction before the Civil Judge (Jr. Div.), Baran, to the effect that the plaintiff and the defendant are permanent residents of Melkhedi Village. The defendant's house is situated on the northern side of plaintiff's house. The defendant has encroached upon the public way on the western side of his house, and has created an obstruction on the public way by placing some stones, and has constructed a temporary 15'x5' platform there which has been described in the plaint as the 'disputed area'. The public way which has been obstructed by the defendant is the main path for the village people to go to Bairwa Basti. This is also the only way available for the plaintiff for going to his house. The plaintiff and other villagers were using the public way for last more than forty years. On the application filed in this regard by the plaintiff and other villagers before the concerned Collector, the Collector sought report of the concerned Patwari; the Patwari submitted his report on 12.6.2009.

(3.) In his written-statement the defendant has claimed that the platform has been errected on his land and that he has not encroached upon any public way, and that the temporary platform is there for the last thirty years. On the basis of the pleadings of the plaintiff and defendants, the learned court below framed seven issues including the issue of relief. Considering the oral and documentary evidence by judgment and decree dated 10.5.2012, the learned Magistrate decreed the suit in favour of the plaintiff. Being aggrieved of the said judgment and decree, the defendant filed a regular first appeal before the District Judge, which was also dismissed as mentioned hereinabove.