KANHAIYA Vs. KUNWARPAL

JUDGEMENT

(1.) THIS is plaintiff's second appeal under Sec. 100 of the Code of Civil Procedure, filed against the judgment and decree dt. 06.08.2012 of learned Additional District Judge, Bharatpur, in Regular Civil Appeal No. 77/2011, whereby he dismissed the appeal and affirmed the judgment and decree dt. 23.09.2011 of learned Civil Judge (Sr. Div.), Kumher, whereby Civil Suit No. 286/2008 filed by him for permanent injunction was dismissed. The plaintiffs filed a suit contending that they have a pucca house constructed in the village Vilawati, Tehsil Kumher, District Bharatpur since long and from eastern -southern side of the house and towards is northern side there is a public way, which goes from village Vilawati to jungle and its width is more than ten feet, and shown in green colour in the map enclosed with the plaint. There exists semi pucca road. That public way is situated in Khasra No. 502 which is a government land. The plaintiff and other villagers are using the same since long. The defendants obstructed the same by raising a wall at place A to B on the said public way and obstructed the same, as a result of which the rain water gets collected in front of the house of the plaintiff and enter therein, causing huge loss to their property.

(2.) THE defendant disputed the averment made in the plaint contending that the entire village Vilawati, Tehsil Kumher, District Bharatpur is situated in Khasra No. 502, which is a land of Makbooja Raj Gair Mumkin Abadi. The pleadings are vague. There is no such disputed public way nor such way goes from abadi to jungle. The rain water passes through the southerns side way and finally falls in Pokhar (pond) of the village. Wall at the place A to B does not exist on the way and flow of the water has not been obstructed by the defendant. It is the gram panchayat which has put some sand. The plaintiff himself has constructed his house on the land of public way, therefore he has the water clogging in front of his house. The plaintiff wants to grab the land of 'nohra' of defendants no.1 to 5, which is in existence for long and is having a boundary and a gate.

(3.) LEARNED trial Court on detailed analysis of the evidence in Para 13 of the judgment including the photos Exhibit 4 to 8 of the disputed site and the documents Exhibits 2 and 3 and also oral as well as documentary evidence, observed that plaintiff no.1 himself has admitted in his statements that the defendants have got constructed boundary wall over the disputed land. There is a tin shed fitted with the gate. They have got a fodder machine installed in that land and keep their cattle there. He has also admitted that on southern -western side of this land is situated a vacant plot of Ratan Singh. There is no house or kaccha road on the southern side of Mani Ram. The public way goes upto the house of Jal Singh. This witness further admitted in his cross -examination that the public way goes upto the place A indicated in the site plan (Exhibit A -1). He also admitted that he earlier initiated proceedings under Sec. 133 of the Code of Criminal Procedure, against the defendants but pleaded ignorance as to the final out come of those proceedings. Ashok (PW -2) also made similar statement and stated that the public way existed only upto the agriculture field of Ram Kishan and not beyond that. The level of the house of plaintiffs is below one -and -a -half feet which is why the water clogs there and does not easily flow from there. Gulab Singh (PW -3) in cross -examination stated that boundary has been raised illegally. The way goes from south to north goes towards agriculture field and adjacent thereto there is place available for Holi festival but the learned trial Court did not accept that evidence as there was no pleading to that effect in the plaint. Ram Singh (PW -4) in cross -examination stated that the way goes upto the agriculture field of plaintiff Kanhaiya, and that there is a gate fixed near the house of Jal Singh. Ramesh Chand (PW -5) in cross -examination though alleged that the land has been encroached upon by way of putting tin shed by obstructing the way, and also admitted that there is boundary on other three sides but he also has stated that there was pucca boundary wall along the agriculture field of Devi Ram and pucca way constructed leading to agriculture field of Ratan Singh. PW -6 Hori Lal has alleged that the defendants have trespassed over 1 1/2 -1 3/4 bighas of land, which is part of Khasra No. 502 and that they have constructed a boundary wall constructed, fitted the gate, raised a tin shed and kept their cattle there. This witness has not stated that the slope of the public way is from south to north, and has stated contrary to the statement of the plaintiff.