M.M. Kumar, J. - (1.) This is defendants second appeal against the judgment of reversal delivered by Addl. District Judge, Jind on 1.8.1980. The learned Addl. District Judge granted mandatory injunction directing defendants appellants (hereinafter to be referred to as 'the defendants') to remove the encroachments made by them in the public street adjoining the house and bara of the plaintiff-respondent (hereinafter to be referred to as the plaintiff). Further prohibitory injunction was issued to the defendants from making any encroachment on the site in dispute namely ABHG as shown in the site plan Ex.P. 1.
(2.) The plaintiff has filed a suit seeking permanent injunction against the defendants restraining them from raising any type of construction on the land belonging to public street marked as ABGI and also from blocking the public street in any way. Further relief of mandatory injunction seeking direction to the defendants to remove the construction raised by them in the public street shown as ABGI and thereby opening the street for free passage and flow of rain water etc. as shown in the site plan. The disputed site falls in the abadi area of village Morkhi, Tehsil Safidon. The learned trial Court recorded the statement of plaintiff who has appeared as PW 1. and statements of PW 2 Gian Chand, Draftsman, PW 3 Risala, PW 4 Bhula who are said to be the nephews of plaintiff Munshi Ram and Sarupa PW 5 who is said to be grandson of Munshi Ram. It also recorded the statements of DWs Ram Dia, DW 1, Baru DW 2, Lehri DW 3, Dhanna DW 4 and Sarupa DW 5. It also recorded the statement of Shri Wazir Singh, Sectional Officer, Provincial Division, Jind who was appointed as Local Commission. After considering the statements, site plan Ex.P1 and the report of the Local Commission Ex. D1, the trial Court reached the conclusion that : (a) there is a bara as mentioned in the rough site plan Ex.D2 prepared by Shri Wazir Singh and the plaintiff was its owner and in possession; (b) there is no public street at the alleged spot and the plaintiff failed to discharge the onus of proving the spot as public street. While deciding this issue, the trial Court criticised the statements of Risala, Bhula, PW3 and PW4 on the ground that they were nephews and PW5 Sarupa that he was grand son of the plaintiff. He further condemned the plaintiff for his failure to bring any Sarpanch/Ex.Sarpanch/Lambardar of the village in support of his case; (c) no encroachment in the street in question has been made by the defendants. The conduct of the plaintiff has been condemned by the trial Court on the ground that when construction was actually raised, he preferred to remain silent and did not even move an application to the Gram Panchayat. A story has been concocted later on asserting that it was a public street. The trial Court reached the conclusion that since there was no street at the alleged spot, the question of encroachment would not arise.
(3.) After deciding these three basic issues, the suit of the plaintiff was dismissed by the learned Sub Judge on 21.9.1979.;