R.L.ANAND, J. - (1.) SADHU Singh son of Nagina Singh was the defendant in the trial Court and he has filed the present R.S.A. which has been directed against the judgment and decree dated 15.11.1979 passed by Addl. District Judge, Patiala, who allowed the appeal of plaintiff Harnam Singh and by setting aside the judgment and decree of the trial Court decreed the suit of the plaintiff for possession of the land denoted by letters ABCD shown in site plain Ex. P1. The first Appellate Court also granted a decree for possession of the strip measuring 13.5 sq. ft. as shown by letters EFGH in the said site plan, as in the opinion of the learned Addl. District Judge, Patiala this area has been encroached by the defendant.
(2.) SOME facts can be noticed in the following manner :- The suit was filed by Harnam Singh on the ground that he had purchased a plot from Pritam Singh and Asa Singh and had exchanged a plot out of this purchased land with the defendant vide exchange deed dated 12.7.1967. The defendant is alleged to have encroached upon the remaining plot of the plaintiff including the strip ABCD and EFGH. It was further alleged by the plaintiff that the defendant had opened the door and window towards the plot ABCD for which the mandatory injunction was sought against the defendant. The suit was contested by the defendant, who pleaded that the construction was raised by him in the presence of the plaintiff and after due demarcation. The door and window were opened by him as these were necessary for enjoyment of light and air. From the pleadings of the parties, the trial Court framed the following issues :- 1. Whether the defendant got the suit site from the plaintiff in exchange and is in possession on that basis ? OPD (Objected to) 2. Whether the plaintiff is entitled to the injunction prayed for ? OPP 3. Relief.
(3.) THE trial Court decided issue No. 1 in favour of the defendant by holding that it cannot be said that defendant is in illegal possession on the disputed site. Issue No. 2 was also decided in favour of the plaintiff. While deciding issue No. 3, the trial Court held that since it was not clear as to which side the defendant has encroached, therefore, the defendant should pay Rs. 300/- to the plaintiff and in that case the suit of the plaintiff shall be deemed to have been dismissed. In case the defendant does not pay the amount, then the suit of the plaintiff for the strip denoted by letters EFGH shall be deemed to have been decreed.;