Decided on August 07,2007

Anand Prakash And Anr. Appellant
Pritam Kumar Verma Respondents


Rajesh Tandon, J. - (1.)HEARD Shri B.P. Nautiyal, Counsel for the appellants and Shri S.K. Jain, Counsel for the respondents. By the present second appeal filed under section 100 of the Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 31.5.1996 passed by the 1st Additional Civil Judge (Senior Division), Dehradun in Civil Appeal No. 75 of 1982.
(2.)SECOND appeal was admitted on the following substantial question of law: - -
1. Because the lower Appellate Court has erred in law in interpreting the sale -deeds dated 5.2.1935 and 1.9.1970 in decreeing the suit for demolition.

2. Because the lower Appellate Court has erred in law in holding that the disputed Rasta is a public Rasta and the public has perfected their title by way of prescription under section 15 of the Easement Act.

Because there is. no evidence on record to show that the disputed passage or the Chowk was ever granted to the public by its owner at any point of time.

(3.)WHETHER the lower Appellate Court's decree is sustainable for grant of relief as was not sought for a piece of land.
3. Briefly stated, a suit was filed by the plaintiff Pritam Kumar Verma for a decree for permanent injunction restraining the defendant No. 1 from raising any construction on the public lane which has been shown in red colour in the plaint and not to create any obstruction and hindrance in the peaceful use of the land of the plaintiff as well as other public in that locality. During the pendency of the suit, further amendment was sought for mandatory injunction directing the defendant remove the constructions.

4. According to the case of the plaintiff, the property bearing municipal No. 42, Rajpur Road, Dehradun belonged to Late Shri Jyoti Prasad and Shri Sandhu Ram, who got a map sanctioned by the Municipal Board, Dehradun vide order dated 23.6.1939 and constructed a building in the year 1939 as per the sanctioned plan. Late Shri Sandhu Ram, father of the plaintiff was the owner of the half of portion of the aforesaid property. After the death of Shri Sandhu Ram, the said portion of the building has been succeeded by the plaintiff. It has been stated that from the time of the purchase of the said property, there was a common lane which connects the western side of East Canal, Dila Ram Bazar, Dehradun to Rajpur Road, Dehradun in the eastern side of the house of the plaintiff. It has been stated that the said lane was being used by the father of the plaintiff as well as the neighbours of the plaintiff without any interruption. The defendant No. 1 has purchased the property No. 8, old No. 2, Dila Ram Bazar in the year 1970. The property exists on the northern side of the said public lane. On 18.7.1977, the defendant No. 1 in order to grab public land, has laid foundation in the said public lane. The plaintiff and other neighbours has resisted the said unauthorised construction, but the defendant No. 1 did not turn up and completed the foundation and further trying to make construction on the foundation already laid down. It has been stated that the defendant No. 1 has no right, interest or title to raise the construction in the said public lane. It has been stated that if the defendant No. 1 succeeds in raising the construction, this will result into the blocking of the passage of the plaintiff as well as his neighbours and they will suffer irreparable loss and injury. The plaintiff and the people of that locality are using the said public lane on the basis of easementary rights. In the amended paragraph 12 -A, the plaintiff has stated as under: - -

The defendant No. 1 had during the pendency of the suit raised a boundary wall of the height at about 4 feet as shown in red colour in the plan annexed herewith. Presently the plaintiff from beginning has right of passage through the lane. Defendant No. 1 had no right to make any construction and he is liable to remove such compensation.


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