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2007 DIGILAW 1735 (ALL)

NATHU RAM v. RAJA RAM

2007-06-18

RAJESH TANDON

body2007
RAJESH TANDON, J. ( 1 ) HEARD Shri Rajendra Dobhal, counsel for the appellants and Shri Gopal Narayan, Counsel for the respondent. ( 2 ) BY the present second appeal filed under section 100 of Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 9. 9. 2003 passed by the Additional District Judge/viith Fast Track Court, Dehradun by which the appeal of the defendant-appellants has been dismissed and the judgment and decree dated 9. 10. 2001 passed by the Civil Judge (Senior Division/xith Fast Track Court, Dehradun has been confirmed. ( 3 ) BRIEFLY stated, a suit was filed by the plaintiff Raja Ram stating therein that he is the owner of his ancestral property being plot Nos. 54 and 55, Hathibarkala, Dehradun. In the north of the property of the plaintiff, the defendant is in occupation of property No. 51 /52. The plaintiff has moved an application for demarcation of the boundary before the revenue authorities which was objected by late Faqir Chand, father of the defendant. In paragraph 3 of the plaint, the plaintiff has stated as under :- "that a few years ago, late Faqir Chand, father of the defendant made a small encroachment on the property of the plaintiff. Then as per the legal advice given to him he moved an application for demarcation of the boundary before the revenue authorities. The late Fakir Chand father of the defendant filed objections. In the said objections, the said Shri Fakir Chand contended that Khasra Nos. 609, 610 and 611 of settlement of 1937-38 was his ancestral property and khasra Nos. 612 and 613 of the settlement of 1937-38 was the ancestral property of the plaintiff and Khasra No. 616/3 was recorded in the name of the plaintiff in 1378 fasli. However, as the said khasra numbers were abadi numbers, the application for demarcation was rejected on the technical ground and the parties were left to get their grievance resolved in Civil Court. " ( 4 ) IT has also been stated that the defendant made encroachment over a portion of the property of the plaintiff and constructed a pushta and Tank. The defendent uses the tank for washing of cloth and as a result of it dirty water also spills into the plaintiffs land causing insanitation and dampness. The said encroachment has also resulted in narrowing of the passage. The defendent uses the tank for washing of cloth and as a result of it dirty water also spills into the plaintiffs land causing insanitation and dampness. The said encroachment has also resulted in narrowing of the passage. The plaintiff has stated that the encroachment made by the defendant is liable to be removed and the defendant is also liable to be restrained from creating nuisance on the land of the plaintiff. The plaintiff has also sent a notice dated 19. 12. 1991 to the defendant but inspite of the service of the notice, the defendant has not complied with the same and replied by making wrong allegations. Hence, the suit has been filed praying for the following reliefs :- " (a) That the pustha shown in red in the plaint map may be directed to be demolished and on failure of the defendant to demolish the same within the time prescribed therefor, its demolition be got done through the agency of the learned Court. (b) That the defendant be permanently restrained from committing nuisance over the land of the plaintiff by splashing dirty water of the washing of clothes. (c) That full costs of the suit be awarded to the plaintiff. (d) That any relief which the learned Court deems proper in the circumstances of the case be also awarded to the plaintiff. ( 5 ) A written statement was filed by the defendant Nathuram. It has been denied that the father of the defendant has ever encroached the property of the plaintiff. The fact regarding any construction by the defendant which creates nuisance to the plaintiff has also been denied. The plaint has been less evaluated and the Court fee paid is also inappropriate and, therefore, the Court has no jurisdiction to try the suit. In the paragraph 18 of the additional pleas, the plaintiff has stated as under :- ( 6 ) IT has also been submitted that no portion of the property of the plaintiff is adjoining to the property of the defendant. The defendant has constructed the water tank in his own land and the same is 40 years old. The defendant has prayed that the suit of the plaintiff is liable to be dismissed. The defendant has constructed the water tank in his own land and the same is 40 years old. The defendant has prayed that the suit of the plaintiff is liable to be dismissed. ( 7 ) ON the pleadings of both the parties, the Trial Court has framed the following issues:- ( 8 ) WHILE deciding issue No. 1, the Trial Court has recorded a finding on the basis of the cross-examination of D. W. 1 Nathuram that the plaintiff is the owner of the property in dispute. ( 9 ) SO far as issue No. 2 is concerned, the Trial Court has recorded that the defendant has encroached upon the land of the plaintiff which is shown in red colour in plaint map. ( 10 ) SO far as issue No. 3 is concerned, the Trial Court has recorded a finding to the following effect :- ( 11 ) WHILE deciding the issue No. 4, the Trial Court has recorded the finding that the defendant has encroached upon the land of the plaintiff. ( 12 ) WITH regard to issue No. 6, the Trial Court on the basis of map 14-ga, has recorded the finding that the land in dispute is identifiable. ( 13 ) SO far as issue No. 7, the Trial Court has recorded the finding to the following effect :- ( 14 ) ON the basis of the findings recorded above, the Trial Court has partly decreed the suit and the defendant was directed to remove the pusta shown in the red colour. ( 15 ) AGGRIEVED by the above order, the plaintiff has preferred an appeal being No. 208 of 2001. The defendant has also preferred the appeal being No. 207 of 2001. The Appellate Court has dismissed both the appeals and has confirmed the judgment and decree dated 9/10/2001 passed by the Trial Court. ( 16 ) BOTH the Courts below have recorded the findings of fact that the plaintiff is the owner of the land shown in the map 14-ga. However, since there exists the pusta and other constructions of the defendants on the land in dispute. It will be appropriate that the same is removed. However, this will not debar the parties to settle the dispute amicably during the execution proceedings by way of compensation, failing which the decree shall be executed within a period of 6 months. However, since there exists the pusta and other constructions of the defendants on the land in dispute. It will be appropriate that the same is removed. However, this will not debar the parties to settle the dispute amicably during the execution proceedings by way of compensation, failing which the decree shall be executed within a period of 6 months. ( 17 ) IN view of the above, I do not find any substantial question of law involved in the second appeal. Second appeal, therefore, is liable to be dismissed. ( 18 ) SUBJECT to the observations made above, second appeal is dismissed. No order as to costs. Appeal Dismissed. .