- (1.) B. C. Kandpa, J. This Second Appeal has been pre ferred against the judgment and order/ decree dated 20. 6. 2002 passed by the. District Judge, Nainital in Civil Appeal No. 27 of 2000, Govind Ballabh Tewari & another Vs. Vinod Krishna Tewari and others arising out of judgment and de cree dated 27. 06. 2000 passed by Addi tional Civil Judge (S. D.), Nainital in Civil Suit No. 103 of 1994 between Pitamber Dutt Tiwari Vs Govind Ballabh Tewari & another.
(2.) BRIEF facts of the case are that a suit was filed by Pitamber Tiwari, father of respondents no. 1 to 5, against the defendants / appellants and the Nagar Palika, respondent no. 6 for demolition of the disputed construction and injunc tion with the allegations that Pitambar Dutt Tewari, original plaintiff, was the owner of the house and land in question shown in the plaint map by letters 'a' 'b' 'c' and 'd' situated in Stone Leigh Compound Nainital, which he purchased from one Safdar Ali Khan vide registered sale-deed, dated 5. 1. 1982. Even from the period prior to purchase the plain tiff was in possession of the house as a tenant in the house purchased by him. The house and land purchased by the plaintiff is surrounded by 6 feet wide Rasta land. The defendants-appellants have purchased a plot adjoining to that of the plaintiff but they have encroached upon the land shown in the plaint map near northern corner of the house of the plaintiff in the area measuring 20' 6" x 8' 6" and thereby they have also ob structed the 6 feet wide road on the northern side of the plaintiff's house: It is alleged in the plaint that the encroach ment was made on 15. 5. 1994 by the de fendants / appellants and even after being asked they did not stop it, hence the suit for demolition of the disputed construction and injunction to restrain the defendants was instituted by the plaintiffs. Defendants no. 1 and 2 con tested the suit and filed their joint writ ten statement in which they denied the plaint case. Defendant no. 3 filed its separate written statement and have not admitted the allegations of the plaint for want of the knowledge. However, they have admitted that none including de fendants no. 1 and 2 have any right to encroach upon the public path and to that extent plaintiff is entitled to injunc tion against the defendants no. 1. and 2. The learned Trial Court, on the basis of pleadings of the parties, framed following issues: (i) Whether the width of the plain tiffs' plot is 117 feet and, not 94 feet as alleged in the plaint? (ii) Whether measurements given in the registered sale-deed executed in favour of the plaintiff and those given in the plaint map are wrong? (iii) Whether plaintiff is the owner of the disputed part of the land? (iv) Whether the suit is undervalued and court-fee paid is insufficient? (v) To what relief, if any, the plain tiffs are entitled? (vi) Whether the defendants have encroached upon the 6 feet rasta land and over the land measuring 8' 6" x 20' 6" ? If so, its effect? (vii) 'whether the defendants are bent on to encroach upon the 6' x. 20' 6" land as alleged in para 6 of the plaint ? If so, its effect?
(3.) THE learned trial Court decided issue no. 4 in negative as a preliminary issue vide judgment and decree dated 7. 4. 1997 and after recording evidence of the parties and hearing them, decreed the suit for removal of the disputed con structions raised by the defendants. Ag grieved by the same, defendants no. 1 and 2 have preferred the appeal before the lower Appellate Court. The learned Lower Appellate Court vide judgment and order dated 20. 6. 2002 partly allowed the appeal and set aside the impugned judgment and decree dated 27. 06. 2000 passed by the trial Court. The Lower Appellate Court, however, maintained the decree passed by the learned trial Court in respect of 6 feet Rasta land adjoining to the plain tiffs' plot at the northern corner 'a' of the house. The defendants, thereafter, preferred the Second Appeal before this court and this court while admitting the Appeal framed the following substantial question of law : "whether the trial Court as well as appellate Court fell into error in not framing any issue on the pleadings of the defendants that the suit was not maintainable and thereby not decid ing the point raised in this regard?";