- (1.) THIS is plaintiffs second appeal challenging the judgment and decree of the trial Court whereby their suit for permanent injunction with a consequential relief of mandatory injunction was dismissed and also the judgment and decree of the lower appellate Court dismissing their appeal filed against the aforesaid judgment and decree of the trial Court.
(2.) AS per the averments made, the plaintiff -appellants were owners of a joint plot bearing No.230/1, 230/2, 230/3 and 230/4. According to the plaintiffs, in the eastern side of the property there is a street, which is 40 feet wide, as shown in red colour in the site plan, and in the eastern side of the Gali (street), property of the defendants is situated. The said street is a public street and is being used by the parties. Now since the defendants were illegally and forcibly encroaching upon the said street and had started construction over it, necessity arose to file the instant suit.
(3.) IN response to the notice of the suit, defendants No.1 to 4 filed written statement stating that width of the street is 20 feet and not 40 feet. It was further submitted that the plaintiffs did not raise the boundary wall of their plot and the plot is at 20 feet depth from the street. They further denied that they have encroached upon any part of the street and thus, it was stated that suit of the plaintiffs be dismissed. Defendant No.5, i.e. M.C. Meham, filed separate written statement stating that the alleged street, if any, vests in the defendant and defendant is not encroaching upon the street nor any construction is being raised. All other assertions made in the plaint were denied and dismissal of the suit was prayed for. On the basis of the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether the defendants have encroached upon the street as alleged? OPP 2. If the above issue is proved in affirmative, whether the plaintiffs are entitled for the relief of permanent injunction restraining the defendants from encroaching the street as alleged? OPP 3. Whether the plaintiffs are entitled for the relief of mandatory injunction directing the defendants to remove the construction over the street as alleged? OPP 4. Whether the suit is not maintainable? OPD 5. Relief.;