HIGH COURT OF UTTARAKHAND
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Prafulla C. Pant, J. -
(1.) THIS second appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 18.02.1982, passed by the then learned Civil Judge, Roorkee, in Civil Appeal No. 47 of 1980, whereby said court has dismissed the appeal, and affirmed the judgment and decree dated 31.03.1980, passed in original Suit No. 198 of 1972, passed by the trial court (Munsif, Roorkee). Said court had decreed the suit of the plaintiff Shanti Devi.
(2.) HEARD learned counsel for the parties, and perused the lower court record. Brief facts of the case are that plaintiff Shanti Devi instituted Suit No. 198 of 1972, stating that she owns the house shown by letters A, B, C, and D (in the plaint map) situated in Plot No. 91 of Village Hima Kheri of Pargana Jwalapur. She pleaded that in the north of her plot, plot No. 91/1 is under cultivation of the defendants. While plot No. 90/3 is Abadi land. In the north of plot No. 90/3 there is Abadi land No. 89/1 of the defendants. Adjacent to said plot (89/1) towards northeast there was a Rasta land (GAUHAR), which is numbered as Plot No. 89/2 in the records. Said Rasta land has been shown by letters F, G, H, K, T, O, P, in the plaint map. It is further pleaded by the plaintiff that she uses said Rasta land to go and cultivate the plot No. 88/2, which is shown by letters K, L, S and T in the plaint map. It is alleged by the plaintiff that the defendants have started raising construction over the plot No. 89/2 i.e. Rasta land with intention to obstruct the pathway of the plaintiff. By amending the plaint, it has been stated that the defendants have encroached upon Plot No. 88/2 after obstructing over the pathway (i.e. Plot No. 89/2). The plaintiff has prayed in the plaint that perpetual prohibitory injunction be issued against the defendants, not to obstruct the Rasta land (Plot No. 89/2) in suit. It has been further prayed by the plaintiff that the construction if any, made by the defendants be also directed to be removed from the adjoining Plot No. 88/2.
(3.) THE defendants contested the suit and denied the claim of the plaintiff. It is pleaded by the defendants that plaintiff had no concern whatsoever either with plot No. 88/2 or with that of 89/2. The defendants denied that there is any Rasta land on plot No. 89/2. It is also stated by the defendants that the plaintiff was never in possession of Plot No. 88/2 as pleaded by her. In the additional written statement, it has been stated that the suit is bad for non -joinder of Gaon Sabha. It is also stated that Gauhar (Rasta land) is situated in Plot No. 54/1 and not in Plot No. 89/2. It is also pleaded that the suit is bad for non -compliance of Order 1 Rule 8 of Code of Civil Procedure, 1908. The legal plea has also been taken that the suit is barred by Section 41 of the Specific Relief Act, 1963.;
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