Research › Search › Judgment

Allahabad High Court · body

2007 DIGILAW 1715 (ALL)

PRITAM SINGH v. GOVIND PRASAD D

2007-06-08

RAJESH TANDON

body2007
RAJESH TANDON, J. Heard Sri G. C. Kandpal, Sri P. S. Danu and Sri K. N. Joshi, Counsel for the appellant and Sri Pankaj Purohit, Counsel for the respondent. 2. By the present first appeal filed under section 96 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 13. 9. 1990 passed by the District Judge Chamoli in a suit for demolition and removing the constructions and handing over possession to the plaintiff within a month failing which the same be demolished by the plaintiff at the expenses of defendant through police and also passed permanent injunction restraining the defendant from raising constructions over the disputed land in future and also that of the public land. 3. Briefly stated, a suit was filed by the plaintiff-respondent being Suit No. 77 of 1989, Govind Prasad Deoradi v. Pritam Singh, praying to the following effect: @hindi = 4. According to the plaint averments, the plaintiff is the lease holder of Half Nali of land of Khasra No. 2119 situate at Village Tharali, Gopeshwar, District Chamoli. He got his land parallel by making a retaining wall and on this he spent a sum of Rs. 10,000/ -. The defendant with the intention to destroy the lease-land of the plaintiff, got four Wooden Rooms (Khokhe) constructed on the way to lease-land of the plaintiff, by which the lease-land of the plaintiff got blocked. On 4th December, 1989, got an information from his brother that the defendant is making a concrete construction by removing the Khokha shown as Khokha No. 4 in the Map and in this construction, he is using the material of the retaining wall of the plaintiff. The plaintiff when inspected the spot, he found foundation and pillars. 5. The defendant has contested his case by filing a written statement. He has denied the possession of the plaintiff on the land in dispute. Further he has stated that the plaintiff has been allotted eight Mutthi Land in Khasra No. 2119 as will appear from Para No. 1 of the plaint. He has stated in paragraph 19 of the additional pleas that he is unaware of any lease granted in favour of the plaintiff. 6. Both the parties have been cross examined. Further he has stated that the plaintiff has been allotted eight Mutthi Land in Khasra No. 2119 as will appear from Para No. 1 of the plaint. He has stated in paragraph 19 of the additional pleas that he is unaware of any lease granted in favour of the plaintiff. 6. Both the parties have been cross examined. The plaintiff-Govind Devrani has been examined as P. W. 1, where he has stated that the defendant-appellant has illegally encroached the way to the leased land of the plaintiff by constructing four Khokhas over it. P. W. 2 i. e. Yashpal Singh, who is posted as Senior Assistant in Public Works Department has proved the signatures made by Sri Laxmi Dutt Gairola-Execvitive Engineer over Exhibit-5 Paper No. 39ga/2. P. W. 3 i. e. Tulsi Ram has stated that he knows Mr. Govind Prasad and Pritam Singh. They had made the retaining wall. The construction work of the wall had been done in the year, 1977-78. He has made signatures on Exhibit-6. They had accepted Rs. 2,000/ -. The length and height of the wall were 40 to 45 and 12 respectively. 7. Defendant has also been examined. D. W. 1 i. e. Preetam Singh has stated that the plot No. 2102 is not on the name of the plaintiff. The land is of Government. Beside Khokhas, there is the land of the plaintiff. 8. D. W. 2 i. e. Surendra Singh has stated that he known Preetam Singh. He has stated that his Khokhas are beside the road and are in existence for last 20 years. There is no way near Khokhas and he has stated that he is unaware of the fact whether below the Khokhas, there is land of Govind Prasad or not. 9. The District Judge, Chamoli while deciding the suit has framed as many as seven issues to the following effect: " 1. Whether the lease of disputed Half Nali Land of Khasra No 2119 has been allotted to the plaintiff and whether he has been in possession over the said land, if yes, its result? 2. Whether the plaintiff after getting the lease of the disputed land and thereafter, has spent Rs. 10,000/- by making a retaining wall and getting the land parallel, if yes, its result? 3. 2. Whether the plaintiff after getting the lease of the disputed land and thereafter, has spent Rs. 10,000/- by making a retaining wall and getting the land parallel, if yes, its result? 3. Whether the defendant has encroached the disputed land of the plaintiff by constructing four Wooden Khokhas, if yes, its effect? 4. Whether the illegal encroachment made by the defendant is liable to be removed? 5. Whether the disputed Khokhas lie in Khasra No. 2102 as has been mentioned in paragraph No. 20 of the written statement? 6. Whether the suit of the plaintiff is not maintainable as has been mentioned in paragraph 24 of the written statement? 7. To what relief the plaintiff is entitled to get? 10. While deciding the points No. 1 and 2, a finding has been recorded that from the documentary and oral evidence, it appears that the plaintiff had been allotted the lease of disputed land Half Nali of Khasra No. 2119. The plaintiff has made a retaining wall after taking the possession and has incurred expenses on that. 11. While deciding the points No. 3, 4 and 5, a finding has been recorded that some of the land has been encroached by the defendant by putting Khokhas in Khasra No. 2102 and some in the Government land. However, all the three aforesaid points were decided in favour of the plaintiff. 12. While deciding the point No. 6, a finding has been recorded that in paragraph 24 of the written statement the defendant has stated that if there was any way to lease-land of the plaintiff, he should have filed suit under easement and present suit of the plaintiff is not maintainable. Present suit has been filed by the plaintiff for permanent injunction, and for removal of the illegal construction and for removal of illegal possession. The defendant has himself admitted that he has done illegal encroachment. This point has also been decided in favour of the plaintiff. 13. Point No. 7 has also been decided in favour of the plaintiff in view of the aforesaid findings. 14. Relevant portion of the findings recorded by the District Judge is quoted below: @hindi = 15. After recording the aforesaid findings, the District Judge has decreed the suit with costs on 13. 9. 1990 to the following effect: @hindi = 16. Point No. 7 has also been decided in favour of the plaintiff in view of the aforesaid findings. 14. Relevant portion of the findings recorded by the District Judge is quoted below: @hindi = 15. After recording the aforesaid findings, the District Judge has decreed the suit with costs on 13. 9. 1990 to the following effect: @hindi = 16. In Mohan Singh v. Danvir Singh Chauhan, 1980 All LJ 78 it has been observed as under: "the plaintiff appears to have objected to the projections of the doors and windows after they had been made, and although the projections do narrow down the breadth of the passage by about 2 feet, it may not be very fair to order their demolition, inasmuch as the plaintiff did not take the necessary steps to prevent the making of the projections before they were made, and inasmuch as their existence has not been proved to cause any such irreparable injury to the plaintiff as cannot be compensated in damages. The common Rasta (passage) has not been narrowed down to any such extent as may have made it unusable for the purposes for which it was left. However, since the plaintiff was originally and continues to be the owner of the land of the 15-6" wide common Rasta, the projections do amount to an encroachment on his land. And although the projections have made it permanently impossible for the plaintiff to use a 2 feet wide strip of the common Rasta (passage) along the defendants house, the plaintiff could be compensated by being awarded the market price of that 2 feet wide strap of land. " 17. In view of the findings recorded by the two Courts below, I do not find any ground so as to interfere under section 96 of the Code of Civil Procedure. 18. From the perusal of the judgment of the Court below, it appears that the encroachment has been directed to be removed and therefore, it will be open for the parties to raise question with regard to damages at the time of execution proceedings subject to agreement between them. 19. Subject to aforesaid observation, First Appeal lacks merit and is dismissed. Appeal Dismissed. .