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2012 DIGILAW 127 (HP)

Suresh Kumar v. Om Kalra

2012-03-26

RAJIV SHARMA

body2012
JUDGEMENT Justice Rajiv Sharma, Judge.This Regular Second Appeal is directed against the judgment and decree dated 1.11.2011 rendered by the learned District Judge, Sirmaur District at Nahan in Civil Appeal No. 33-CA/ 13 of 2007. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that appellant-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit for permanent prohibitory injunction. According to the plaintiff, one Smt. Saraswati Devi daughter of Sh. Madhu Sudan Dass was the owner of the land with construction under Khasra Nos. 1091, 1094, 1097, 1098 and 1099, Khata Khatauni No. 19/3 1 measuring 53.97 square meters situated in Muhal Rajinder Nagar, Nahan. She was also owner of the property in possession of the respondent-defendant (hereinafter referred to as ‘defendant’ for convenience sake), which was towards Ranj ore Bhawan, Nahan. Smt. Saraswati Devi sold her house and vacant land with all rights for egress and ingress, light and air to the plaintiff vide registered sale deed dated 3.8.1998. Earlier Smt. Saraswati Devi had been residing in this portion herself and her egress and ingress to this property was from the direction of Ranj ore Palace. Building plan depicting entire property was appended with the plaint. The ground floor of the house owned by Smt. Saraswati Devi was shown in red colour, which was purchased by the plaintiff. The portion of the plaintiff, which was purchased earlier to the instant purchase dated 3.8.1998 was shown in building plan in green colour and the portion purchased by the defendant from Smt. Saraswati Devi and her relations was shown in blue colour. However, the portion reflected in para “A” of the building plan wherein adjacent to staircase reaching the main street was store in blue colour has been shown which was not a store at the time of purchase but it was part and parcel of adjoining staircase. The staircase was being used by the defendant and Smt. Saraswati Devi as common path. The defendant, according to the plaintiff, forcibly and illegally dismantled the staircase and constructed a store thereon. In the process, the right of egress and ingress to the respective tenements was effected. According to the plaintiff, defendant has no right to use this part of the staircase and to construct a store. The same was liable to be dismantled and restored to its position. In the process, the right of egress and ingress to the respective tenements was effected. According to the plaintiff, defendant has no right to use this part of the staircase and to construct a store. The same was liable to be dismantled and restored to its position. According to the plaintiff, his predecessor-in-interests had right to egress and ingress to the double storied house situated in Khasra No. 1099 through Khasra No. 1094. Defendant had been interfering in Khasra Nos. 1098, 1097 and 1094. Defendant has placed certain flower pots before the door step in the year 2003. He was threatening to construct a wall in front of said foot steps so as to permanently and illegally block the ingress and egress to his property. 3. The suit was resisted and contested by the defendant. It was stated by the defendant that vide sale deed dated 7.1.1981, she purchased the property from Smt. Saraswati Devi. She constructed the house in the year 1985-86. The plaintiff also purchased the property from Smt. Saraswati Devi after the construction had already been completed by the defendant. There had been no ingress or egress of the vendor after 1981 from the stairs of the defendant nor the plaintiff had any passage from the stairs of the defendant even after the purchase in the year 1998. It was denied that the store was in existence in the year 1998. According to the defendant, the store was constructed in the year 1995. There is a septic tank below the store. The construction was carried out in the year 1995. No objection was raised at the time when the store was constructed. According to the defendant, the suit was barred by limitation. 4. The plaintiff filed replication. Thereafter, the learned Civil Judge (Senior Division) framed issues on 24.7.2003.Suit of the plaintiff was dismissed on 31.7.2007. Plaintiff preferred an appeal before the learned District Judge, Sirmaur at Nahan. He dismissed the same on 1.11.2011. Hence, the present Regular Second Appeal. 5. Mr. Ramakant Sharma on the basis of the substantial questions of law framed has argued that both the courts below have not properly appreciated the oral as well as documentary evidence. He then argued that application under order 26 rule 9 of the Code of Civil Procedure has been dismissed without due application of mind by the learned first appellate court on 8.4.2011. 6. He then argued that application under order 26 rule 9 of the Code of Civil Procedure has been dismissed without due application of mind by the learned first appellate court on 8.4.2011. 6. I have heard Mr. Ramakant Sharma and have gone through the judgments carefully. 7.Plaintiff has produced two witnesses to prove his case. He has appeared as PW- 1. He has admitted in his cross-examination that defendant has carried out addition, alterations and repairs of the house after purchasing the same. He has shown his ignorance whether the defendant has got the map approved for the construction of her house in the year 1985. He has also admitted that the store was constructed by the defendant by mutual understanding and he did not object to the same. 8. PW-2 Akhtar Ali has proved the map Ex.PA. He has admitted in his cross-examination that he had not associated defendant at the time of preparation of map Ex.PA. 9. Defendant has appeared as DW-2. She has produced her evidence by way of affidavit Ex.D- 1. She has deposed in her affidavit that her husband was in possession of the house of Smt. Saraswati Devi as tenant. The house was purchased on 7.1.1981 through sale deed dated 7.1.1981 Ex.PB. She got the map approved from Municipal Committee, Nahan in the year 1985 Ex.DA. The part of the stairs lying towards the house of Maharaja Jagat Bahadur Singh was demolished in the year 1985 and store and drain were constructed. 10. DW-2 Nishi Kant has led his evidence by way of affidavit Ex.D-2. According to him, he has undertaken the fabrication work of the house of defendant in the year 1989. 11. DW-3 Harinder Singh Thakur has also led his evidence by way of affidavit. According to him, the passage to his house had been from the palace of Nahan, touching the houses of the defendant and plaintiff. This passage was being used by him since his childhood. 12.DW-4 Surat Pundir has deposed in his affidavit that he had been visiting the house of defendant for the last 13 years. There was a staircase and gate iron grill on the entrance of the stairs of the house of defendant. There was also a store adjoining. He had been seeing the store for the last 12-13 years. 13. 12.DW-4 Surat Pundir has deposed in his affidavit that he had been visiting the house of defendant for the last 13 years. There was a staircase and gate iron grill on the entrance of the stairs of the house of defendant. There was also a store adjoining. He had been seeing the store for the last 12-13 years. 13. Plaintiff had also moved an application under order 6 rule 17 of the Code of Civil Procedure. The same was allowed. Plaintiff has also filed application under order 26 rule 9 of the Code of Civil Procedure. The same was rejected by the first appellate court on 8.4.2011. Plaintiff has not preferred any revision against the order dated 8.4.2011. 14. What emerges from the perusal of the evidence led by the parties is that plaintiff in his cross-examination while appearing as PW- 1 has categorically admitted that the store had been constructed by the defendant with his consent. The staircase was also demolished by the defendant with his consent in the year 2000. Defendant has got the map approved from the Municipal Committee, Nahan in the year 1985 vide Ex.DA. He has also admitted that Smt. Saraswati while selling portion of the land to him in the year 1983 encroached the land from the northern side of the property, which was having a path. The same was still in existence. Plaintiff has also not placed on record tatima to prove that the store/staircase has been constructed by the defendant on the common land. The map prepared by PW-2 Akhtar Ali Ex.PA did not mention khasra number over which the disputed store/staircase was existing. Plaintiff has not proved his right qua stairs and common path. 15. Accordingly, both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no substantial question of law involved in the Regular Second Appeal and as such the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.