- (1.) THIS appeal, preferred under Section 100 Code of Civil Procedure, 1908, is directed against the judgment and order dated 09-08-1977, passed by learned District Judge, Pauri Garhwal in civil appeal No. 34 of 1970 and civil appeal No. 37 of 1970, arising out of suit No. 05 of 1967.
(2.) HEARD learned counsel for the Parties and perused the record. Brief facts of the case are that a suit No. 05 of 1967, was filed by the plaintiffs/ appellants against Kalyan Singh (since deceased) for demolition of the disputed construction raised by the said defendant and also for injunction and damages. Plaintiffs/appellants case that one Shankar Lal and Jagdish Prasad were original owners of the plots suit. A suit was filed in the year 1942 and they got the plots partitioned. thereafter, defendant purchased a provision -In of the plot from the aforesaid original owners. Other portion of the plot has purchased by the plaintiffs' father-llig Ram Tiwari. Land owned by Shankar Lal and Jagdish Prasad, which has transferred to the plaintiffs' father, insisted of plot No. 120/1, area measuring 3/16 nali, plot No. 147/1, area measuring 3/16 nali, plot No. 147/1 area measuring 6/16 nali. Plaintiffs' father got house and shops constructed over plot No. 120/1, which was constructed in the year 1963. The defendant (Kalyan Singh) had his house in plot No. 120/2 on the West of the plaintiffs' house. The defendant got his house constructed in the year 1961-62. Plot No. 147/1 was in fact plaintiffs' passage. It is alleged by the plaintiffs that the defendant, while making construction in plot No. 120/2, encroached over some of the plaintiffs' land in plot No. 147/1. Plaintiffs' pro tested to the encroachment. However the matter was settled amicably by the parties by entering into an agreement dated 24-11-1962. The allegations of the plaintiffs is that on 10-01-1967, in their absence, defendant constructed a wall adjoining to the eastern wall of the kitchen of the plaintiffs and encroached upon the plaintiffs' land. It is further pleaded by the plaintiffs that in doing so, defendant removed the tin sheets of the plaintiffs' kitchen and dispossessed the plaintiffs from their kitchen. It was fur ther pleaded that the passage was con sequently blocked by the disputed con struction. It is alleged that defendant got constructed their toilet in plot No. 146 and by doing so, they started flowing sewage through the drain of the plain tiffs in plot No. 120/1. This caused nui sance to the plaintiffs. Plaintiffs there fore, filed a suit for demolition of the room constructed by the defendant and also sought injunction against the de fendant apart from the damages to the tune of Rs. 60/ -. The suit was contested by the de fendant by filing written statement be fore the trial court. It is admitted by the defendant that plot No. 120/1, and plot No. 147/1 belonged to the plaintiffs and it is pleaded that plots No. 120/2,146 and 147/2 belonged to the defendant. It is also admitted to the defendant that in a partition Suit in the year 1942-43, a raasta in plot No. 147/1 was carved out by the predecessors in title. However, it was not denied by the defendant that the disputed kitchen belonged to the plaintiffs. According to the defendant, where the disputed construction stands, the land belonged to him. It is further pleaded by the defendant that plaintiffs' kitchen was not removed, and it was only defendant's construction, which was renovated. Though it is admitted to the defendant that the agreement be tween him and the plaintiffs was entered on 24-11-1962, but it is pleaded that plaintiffs themselves did not abide by the terms of the agreement. In fact suit No. 107 of 1943, was instituted by the de fendant, against the plaintiffs predeces sor in title Shankar Lai/and Jagdish Prasad, who blocked 4he defendant's. nali. The right of the defendant to flow water in the disputed nali was upheld by the court and the suit No. 107 of 1943 was decreed. Lastly it was pleaded by the defendant that the sewage water used to flow in said nali.
(3.) THE trial court framed as many as nine issues on the basis of the plead ings : 1. Whether the plaintiffs are the owners of that portion of plot over which the disputed kitchen and its upper construction exists ? If so, whether the defendant is liable to be ejected therefrom on the ground alleged in the plaint ? 2. (a) Whether the plaintiffs have exclusive right to use the dis puted nali ? (b) Whether the plaintiffs suit in respect of the said nail is not maintainable ? ' 3. Whether the plaintiffs are owners of plot No. 147/1 and whether any of its portion has been illegally encroached upon by the defendant ? If so, its ef fect ? 4. THEther the lower portion of the kitchen was constructed by the plaintiffs ? 5. Is the suit bad for non-joinder of necessary parties ? Whether the defendant has not followed the terms of agreement dated 24-11 -1962? If so, its ef fect?;