M.L.SINGHAL,J - (1.) GRAM Panchayat of village Rai Peerbuxwala filed suit for mandatory injunction against Surain Singh son of Jiwan Singh of village Peerbuxwala directing the latter to remove wall/gate put up by him in streets shown red in the plan attached to the plaint at points A&B, C&D. Prayer was also made that he be directed to remove Khurli placed by him at point E in the said streets situated in village Rai Pirbuxwala which lead towards the phirni on the eastern side. It was also prayed that he be directed to restrain himself from raising any construction in the said streets. It was alleged in the plaint that there are streets in the village as shown in the red in the plan joining the phirni on eastern side. Houses of Sarban, Gurnam Singh etc. adjoin the said street on the southern side and the houses of Jarnail Singh etc. adjoin the street on the northern side. Residents of mohalla Nanak Singh had been approaching the phirni through the said street. An application was moved by the residents of mohalla Nanak Singh on 27.8.1993 that defendant (Surain Singh) had closed the street by putting a gate on one of the streets of the eastern side shown as AB in the said plan and thereby the passage was blocked. Meeting was convened by the Gram panchayat on 3.9.1994 and it was found that residents of the village were facing grave hardship in approaching the phirni through that street due to the blockage of the street by him. It was resolved by the gram panchayat that notice be issued to him calling upon him to remove the said gate. He refused to receive the notice. Matter was taken by the gram panchayat to the Court of SDM, Kapurthala for securing the removal of the encroachment. Surain Singh also constructed Khurli adjoining the said gate on the eastern side a few days after putting up gate in the street. Defendant also blocked another street by raising wall at point CD. Gram Panchayat claimed that these were public streets meant to be used by the people of the village as a means to ingress and since the people of the village were facing difficulty in the use of the said streets due to the blockage by Surain Singh, they moved application under Section 133 of the Code of Criminal Procedure before SDM, Kapurthala. On 17.3.1994, the said application was dismissed by SDM, Kapurthala saying that it was a very old gate and, therefore, its removal could not be directed. Revision filed by the gram panchayat was also dismissed by learned Sessions Judge, Kapurthala vide order dated 10.5.1997. It was thereafter that gram Panchayat filed this suit in the civil Court at Kapurthala for the aforesaid relief. Defendant Surain Singh contested the suit urging that there was no street beyond points CD and he had put up gate and manger 30 years ago. It was denied that any passage existed.
(2.) ON the pleadings of the parties, the following issues were framed by the learned trial Court : 1. Whether there exist two streets as shown in red colour in the site plan attached to the plaint ? OPP 2. Whether the plaintiff is entitled to the decree for mandatory injunction ? OPP 3. Whether the suit is not maintainable in the present form ? OPD 4. Whether the jurisdiction of the civil Court is barred ? OPD 5. Whether the disputed property is part of the pond ? If so, to what effect ? OPD 6. Relief. Additional Civil Judge, Senior Division, Kapurthala decreed the plaintiff's suit for mandatory injunction directing the defendant to remove wall/gate erected by him in the streets shown red in the plan P1 attached to the plaint at points A&B, C&D and also directed him to remove Khurli put up by him at point E in the said streets, in view of his findings, that these are streets which the defendant had obstructed by putting up gate and manger and the putting up of gate and manger blocked the streets thereby obstructing the people of the village to make use of these streets for going to the village phirni. It was found that the obstruction of the streets was nuisance to the people of the village. It was found that it was part of the village pond which was being used as streets. Aggrieved from this judgment and decree dated 22.2.1999 passed by Additional Civil Judge, Senior Division, Kapurthala, Surain Singh went in appeal. Learned Additional District Judge, Kapurthala dismissed the appeal vide order dated 20.4.1999. Aggrieved from the dismissal of his appeal by the learned Additional District Judge, Kapurthala, Surain Singh has come up in appeal to this Court.
(3.) I have heard the learned counsel for the parties and have gone through the record.;