R.B.Mehrotra - (1.) THIS is a defendant's second appeal. The plaintiff respondent filed a suit for demolition of the constructions made by the defendant on the land alleged to be rasta shown by letters Ka, Kha, Ga and Gha in the plaint map and for a permanent injunction restraining the defendant from interfering with the plaintiff's user over the land Ka, Kha, Ga and Gha as rasta and further restraining the defendant from making any construction on this land
(2.) THE suit was contested by the defendant-appellant on the ground that no rasta of the plaintiff has been existing towards north of his house, that the wall of the defendant is old, that the plaintiff has not been using the same as rasta and that the rasta of the plaintiff is towards east of his house and the suit of the plaintiff is liable to be dismissed with costs. After allowing the parties to lead evidence, the learned Munsif dismissed the plaintiff's suit and held that the plaintiff has failed to prove that a 3 feet pucca rasta has been existing over the land Ka, Kha, Ga and Gha towards north of the plaintiff's house. THE learned Munsif further held that the plaintiff has failed to prove that he acquired any casementary right or other legal right to pass through the alleged rasta in dispute for egress and ingress from his bouse. Ultimately the learned Munsif held that the plaintiff has not been able to prove that he has any title by ownership or adverse possession for more than 12 years over the land Ka, Kha, Ga and Gha and has also failed to establish bis right to use the land Ka, Kha, Ga and Gha as rasta. As such the plaintiff is not entitled to any relief either for demolishing the wall or for any injunction against the defendant. Aggrieved by the aforesaid judgment, the plaintiff preferred an appeal which was heard by the I Addl. District Judge, Nainital. In the appeal, the plaintiff filed three documents along with an application under Order 41 rule 27 of the Code of Civil Procedure. The aforesaid application was allowed and the following order was passed on the said application :- "Heard. The original is in bad shape. Let it be returned back. The copy be admitted and exhibited. v Sd/- 26-2-77." By means of this application, the plaintiff brought on record a sale deed in favour of the defendant in respect of the adjacent house and sanctioned map of the defendant for constructing his house which existed after the aleged rasta. The lower appellate court on the basis of the map produced by the plaintiff by means of evidence filed along with an application under Order 41 rule 27 of the Code of Civil Procedure held. "The map sanctioned shows that. 3 ft. Rasta existed as shown there in to the north of the plaintiff's house and further Rasta was shown to the south of the defendant's Baithak while the Board by order dated 20-8-1970 passed on the defendant's application approved the map subject to the condition that 4 ft. Rasta was left instead of 3 ft. to the south of the Defendant's construction. I do not think the defendant was entitled to disobey the terms of sanction and construct in violation of the same The existence of the Rasta was proved even by the map submitted by the defendant herself and it was quite immaterial as to who was the owner of the land on which the Rasta passed. It was the duty of the court to enforce the law and also upheld statutory orders passed by an autonomous body. Eyes cannot be closed to the terms of sanction granted to the defendant nor can the court permit her to construct any violation of the statutory permission granted by the Board?"
(3.) ON the basis of the aforesaid finding, the lower appellate court held ;- "The defendant shall be compelled to leave 4 ft Rasta in terms of sanction order dated 20-7-1970 although the plaintiff has not prayed for the same. It may be noted that this will be done in dis-charge of court's duty to enforce statutory orders coming to its notice." The lower appellate court accordingly allowed the appeal and directed demolition of the defendant's house and directed that the defendant shall leave 4 ft. land towards north of the plaintiff's house before making any construction in future.;