B.C. Kandpal, J. - (1.)This Second Appeal has been preferred against the judgment and order/ decree dated 20.6.2002 passed by the District Judge, Nainital in Civil Appeal No. 27 of 2000, Govind Ballabh Tewari and Anr. v/s. Vinod Krishna Tewari and Ors. arising out of judgment and decree dated 27.06.2000 passed by Additional Civil Judge (S.D.), Nainital in Civil Suit No. 103 of 1994 between Pitamber Dutt Tiwari v/s. Govind Ballabh Tewari and Anr.
(2.)Brief facts of the case are that a suit was filed by Pitamber Tiwari, father of Respondents No. 1 to 5, against the Defendants / Appellants and the Nagar Palika, Respondent No. 6 for demolition of the disputed construction and injunction with the allegations that Pitambar Dutt Tewari, original Plaintiff, was the owner of the house and land in question shown in the plaint map by letters 'A' 'B' 'C and 'D' situated in Stone Leigh Compound Nainital, which he purchased from one Safdar Ali Khan vide registered sale -deed, dated 5.1.1982. Even from the period prior to purchase the Plaintiff was in possession of the house as a tenant in the house purchased by him. The house and land purchased by the Plaintiff is surrounded by 6 feet wide Rasta land. The Defendants -appellants have purchased a plot adjoining to that of the Plaintiff but they have encroached upon the land shown in the plaint map near northern corner of the house of the Plaintiff in the area measuring 20' 6" x 8' 6" and thereby they have also obstructed the 6 feet wide road on the northern side of the Plaintiff's house. It is alleged in the plaint that the encroachment was made on 15.5.1994 by the Defendants / Appellants and even after being asked they did not stop it, hence the suit for demolition of the disputed construction and injunction to restrain the Defendants was instituted by the Plaintiffs.
(3.)Defendants No. 1 and 2 contested the suit and filed their joint written statement in which they denied the plaint case. Defendant No. 3 filed its separate written statement and have not admitted the allegations of the plaint for want of the knowledge. However, they have admitted that none including Defendants No. 1 and 2 have any right to encroach upon the public path and to that extent Plaintiff is entitled to injunction against the Defendants No. 1 and 2.
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