Decided on April 12,2012

Sulochna Devi W/o Late Mahanand, Bhagwati Dabral S/o Late Mahanand and Suman Dabral S/o Late Mahanand, all residents of Birla Gali, Ward No. 6, Municipal Area Uttarkashi, district Uttarkashi. (Defendant Nos. 1, 3 And 4) Appellant
Nagendra Datt Thapliyal S/O Kali Ram Thapliyal R/O 17 Nagendra Saklani Maarg, Ward No. 5, Municipal Area Uttarkashi, Municipal area, district Uttarkashi. (Plaintiff), Ramanand Dabral S/O Late Mahanand, resident of Barkot, Tehsil Barkot, district Uttarkashi. (defendant no. 7 -Proforma Respdt). Respondents


- (1.) Learned counsel for the appellant files supplementary affidavit. The same is taken on record. This second appeal is directed against the judgment and decree dated 9-12-2011 passed by the District Judge Uttarkashi in Civil Appeal No. 14 of 2009, Nagendra Datt Thapliyal Vs. Smt. Sulochana and others, whereby the appeal was allowed, the judgment under appeal was set aside and the suit of the plaintiff-appellant for mandatory injunction and permanent injunction was decreed in favour of the plaintiff-respondent no. 1 herein.
(2.) Briefly stated, the facts giving rise to this appeal are that the plaintiff-respondent no. 1 herein instituted a suit bearing O.S. No. 25 of 2006, for a decree for mandatory injunction as well as permanent injunction in the court of Civil Judge (Senior Division) Uttarkashi in the year 2006 with the averment that he is the owner of a shop and two rooms, situated at Ward Nos. 6, Birla Gali, Uttarkashi as described in Schedule Ka of the plaint. The plaintiff claimed himself to be owner of the said property on the basis of a registered sale deed dated 3-3-1978, which was executed in his favour by Mr. Chandramani and Indramani, sons of Mr. Dharni Datt. In the suit, the plaintiff sought a relief for a decree of mandatory injunction against the defendants including the appellants herein for removing the constructions raised over the roof of the premises, situated at Birla Gali, Uttarakashi and a decree for permanent injunction restraining the defendants from interfering over the roof and raising construction thereon.
(3.) So far as the execution of the sale-deed in favour of the plaintiff-respondent no. 1 is concerned, the same has not been disputed by the defendant-appellants in their written statement. The specific case of the defendants before the trial Court was that pursuant to the order passed by the District and Sessions Judge, Tehri Garhwal, the sale deed was executed in favour of Chandramani and Indramani through advocate commissioner, but no possession had ever been handed over to Chandramani and Indramani. It was also stated in paragraph no. 21 of the written statement that by collusion of Tehsildar and official of Tehsil, mutation was also got sanctioned in their favour. Prior to that, an agreement was executed only for a shop and the sale deed was got executed including two disputed rooms also. It was claimed by the defendants that they being the legal heirs of Mahanand are owner of the property in dispute.;

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