Decided on November 21,2012

VISHAL Appellant
Devendra Singh Bisht Respondents


V.K. Bist, J. - (1.) By way of instant petition, the petitioner has challenged the order dated 20.03.2012 passed by Addl. District Judge/ 1st F.T.C., Nainital in Misc. Civil Appeal No. 33 of 2011 by which the misc. appeal filed by the petitioner against the order dated 21.12.2011 passed by trial Court was rejected. The petitioner has also assailed the order dated 21.12.2011 passed by the Civil Judge (Sr. Div.), Nainital in Civil Suit No. 50 of 2011 Vishal v. Devendra Singh Bisht , whereby the temporary injunction application bearing paper no. 6Ga was rejected.
(2.) Brief facts as narrated in the plaint are that the plaintiff/ petitioner instituted the said civil suit in the Court of Civil Judge (Sr. Div.), Nainital with the averments that father of the petitioner purchased a piece of land measuring 37x26.6 feet situate at Pilgrim Loge Compound, Mallital, Nainital from its previous owner vide the registered sale deed dated 24.09.1990. His father constructed his house on the said land with the prior permission of the competent sanctioning authority and some part of the land was left vacant for light, air and other easements. After the death of his father, the petitioner and his mother became owner of the said property. It has been averred in the plaint that in the year 2005 the defendant/respondent also purchased two storied outhouse, just adjacent plot of plaintiff towards eastern side. The defendant started renovation of his purchased property, however he started to encroach upon the property of the petitioner. This act of the defendant was complained of to the Lake Development Authority, Nainital and an FIR was also lodged, however the defendant made construction over 3x14 feet land of petitioner shown by red colour and marked by AEFGA in the plaint map. In the month of May, 2011 the plaintiff/petitioner told the defendant/ respondent to remove his encroachment, who in response did not remove it, moreover told that he will lay down sewer line from the remaining land of petitioner, which is shown by green colour marked by BCDGFE in the map, attached with the plaint. Thereafter, the petitioner instituted said suit for permanent prohibitory injunction. Alongwith the plaint, the petitioner filed an application bearing no. 6Ga for temporary injunction.
(3.) Respondent filed his objection with the pleading that the petitioner instituted the civil suit by misrepresenting the boundaries of his own house, moreover the petitioner has concealed the real facts and did not disclose the common passage between the properties of the parties to the lis. It has been further pleaded that the respondent is making construction upon his own land, to which the petitioner has no concern, as there is common passage between the properties of petitioner and respondent, which separates both the properties. It was further pleaded that the petitioner has objection with regard to laying down of sewage pipes under the common passage, for which the respondent has already got permission from the concerned authorities and the petitioner has no right to prevent the respondent from laying down pipes under the common passage by claiming the property of his own and by concealing the fact of common pathway which is being used not only by the respondent but also by the other local residents as to the way leading to their houses in form of right to necessity and respondent got this right by virtue of registered sale deed, as the vendor was also using this common passage, as the only way to get access to his house.;

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