Decided on March 01,2013

Jagmohan Singh Sajwan Appellant
Jagmohan Prasad Respondents


B.S.VERMA, J. - (1.) SRI Ramji Srivastava Counsel for the appellant seeks permission to amend the relief clause also making prayer to quash the judgment and decree passed by trial court. Permission granted. Amendment has been incorporated.
(2.) THIS appeal is directed against the judgment and decree dated 21.4.2005, passed by District Judge Pauri Garhwal in Civil Appeal No. 8/2003 Jagmohan Singh Sajwan vs. Jagmohan Prasad and others, which was filed against the judgment and decree dated 17 -9 -2003, passed by Civil Judge (J.D.) Kotdwar in Civil Suit No. 23/2001.
(3.) THIS appeal has been admitted on the following substantial questions of law: - 1 - Whether the finding of the appellate court that the Nagar Palika has a right to initiate the proceedings under section 133 Cr.P.C. with regard to the public way can be a ground to reject the relief claimed by the plaintiff, so far as the use of the 'Rasta in dispute is concerned?. 2 - Whether Smt. Kanta Devi having sold the entire land and the 'Rasta having been given to the parties, she has been seized to be the owner of the plots. The finding of the appellate court that Smt. Kanta Devi would have an objection to close the 'Rasta in dispute has no bearing in the matter and the finding are liable to be vitiated. Brief facts of the case are necessary to be narrated for the just decision of substantial questions. According to the plaintiff he filed suit for permanent injunction against the respondents with the allegation that the plaintiff purchased plot from Smt. Kanta Devi W/o Chandra Shekhar through the registered sale deed dated 4.3.1994 and his name was mutated in the revenue record on the basis of the sale deed. The defendant also purchased another plot on 7.7.1997 through registered sale deed. The plaintiff constructed a house on the land purchased from Smt. Kanta Devi, the boundaries of which are in the east - land of Jagmohan Singh Negi, in west - 10feet wide road, in north - 8feet wide road and in sought 8feet wide road. The boundaries of the land of defendants are, in east - the land of Mohani Rawat, in west - land of Patwalji, in north - 8feet wide road, thereafter the house of the plaintiff and in sought the land of Chandra Mohan Barthwal. Between the land plaintiff and defendants, there is a 8feet wide road which is in use of both the parties. The defendant intended to close this 8feet wide rasta on 3.3.1999 and started to construct a pillar over the boundary of the plaintiffs land, then the plaintiff made a complaint to S.D.M. Kotdwar, who stopped the construction of pillar. It is also alleged that if the defendant closes the Rasta the plaintiff will suffer great irreparable loss. Therefore the plaintiff fled suit. A map of the land in dispute has been attached with the plaint.;

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