Rajesh Tandon, J. - (1.) Heard Sri Dinesh Gahtori, Counsel for the appellant.
(2.) BY the present Second Appeal filed under section 100 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and order dated 15. 3. 2007 passed by the District Judge, Rudraprayag in Civil Appeal No. 3 of 2006 State of Wtaranchal v. Brahma Nand Sati and others arising out of Civil Suit No. 11 of 2000 Sri Bramha Nand Sati and others v. State of Uttarakhand and others. Briefly stated, a suit was filed by the plaintiffs/appellants being Civil Suit No. 11 of 2000 Sri Bramha Nand Sati and others v. State of Uttarakhand and others praying for the following reliefs: According to the plaintiff/appellants, they are permanent resident of Village Jhalimath (Sari), Patwari Circle Sari, Tehsil and District - Rudra-prayag. Village Jhalimath is a revenue village and it comes under the Non Zamin-dari Abolition Khasra No. 151 (Settlement No. 239 ). Earlier it was in the name of State of Uttar Pradesh. Khasra No. 151 consists the area of 6 Nali and 13 Mutthi land and adjoining land is of the plaintiff and other villagers. On the said land, there is Gaushala and houses of the plaintiff for a long time. Along with the plaint, the plaintiff has annexed a map, where Khasra No. 151 has been shown by letters A, B, C and D and in this area, there is Well, which gets filled up in the rainy season and water becomes available to the cattle of the villagers. Apart from that well, the villagers have no other source of water. Further, it has been stated that the villagers kept their cattle on that Khasra from a long time. Plaintiff has submitted that in the month of October, 2000, officials of the State had come to inspect the land of Khasra No. 151 for construction of the Patwari Chauki, and as soon as the plaintiffs got this information, they filed an application in the office of Sub District Magistrate, Rudraprayag on 23. 10. 2000, where the prayer has been made not to construct any Patwari Chauki on the said land and to construct the Chauki, where the earlier Chauki was situated. When the plaintiffs sought the copy of the Khatauni, they refused their request to give the same. In the month of November, 2000, defendant No. 2, who is a contractor by profession came and started leveling the land for construction of the Patwari Chauki and collected the material for building the same. Plaintiffs again moved an application on 6. 11. 2000 before the District Magistrate, Rudraprayag and District Magistrate directed the Sub District Magistrate, Rudraprayag to verify the said matter and directed to stay the construction of the Patwari Chauki at Sari until and unless the site inspection is done. Despite the said order, defendant No. 2 did not stop the construction and he laid the foundation for the Patwari Chauki on 9. 11. 2000. Plaintiffs and other villagers instructed the Contractor not to construct the Chauki as there is stay order of the District Magistrate, but he started threatening the plaintiff and did not stop the construction. Plaintiffs have stated that the construction work is still going on, thus, the plaintiffs have filed the suit along with Application under Order XXXIX Rules land 2 of the C.P.C.
(3.) Defendant No. 1 has contested the suit by filing a written statement Paper No. 30 Ka denying all the averments contained in the plaint. In the additional pleas, the plaintiffs have stated that Khasra No. 151 Non Z. A. (Present Khasra No. 239) is State land, where neither any Gaushala nor the same is in possession of the plaintiffs, nor there is any well. Further, it has been stated that as there is a public Gauchar, Panghat, this vests in the State, which can be used by the State at any moment and if any Patwari Chauki is constructed over there, it will not effect the easementry rights of the plaintiffs. It has further been stated that the Chauki is being constructed on the proposal of the Gram Sabha and there is no land in the Centre for Patwari Chauki. It has further been stated that incorrect application had been given to the District Magistrate just to confuse him and no stay order had been granted by the District Magistrate for stopping the construction. It has further been stated that on the said place, the Patwari Chauki is ready and therefore, the suit of the plaintiff is liable to be rejected.;