Paramjeet Singh, J. - (1.) THE suit out of which this regular second appeal arises was for perpetual and mandatory injunction whereby the respondent -plaintiff had prayed for restraining the defendant from encroaching upon or raising any sort of construction over the gair mumkin passage 'sare -aam', comprised in khewat No. 180, khatauni No. 222, khasra No. 423 situated within the revenue estate of village Gobindpura, Tehsil Payal, District Ludhiana and from interfering in the use of passage by the plaintiff and also prayed for mandatory injunction directing the defendant to remove the encroachment measuring 23' 9" x 3' 6" marked as ABCD shown in green colour in the site plan attached with the plaint, illegally and forcibly raised by the defendant over the passage 'sare aam'.
(2.) THE Court of first instance decreed the suit vide judgment and decree dated 14.08.2012. Feeling aggrieved, the defendant preferred an appeal which has been dismissed by lower Appellate Court vide judgment and decree dated 09.10.2013. The details facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. However, the brief facts relevant for disposal of this regular second appeal are that plaintiff -Nachhattar Singh approached the Civil Court seeking a decree for perpetual and mandatory injunction alleging that he along with his brothers Harchand Singh and Sewa Singh were co -owners of gair -mumkin abadi comprised in khasra No. 421(1B -9 -B). The defendant was co -owner of gair mumkin abadi comprised in khasra Nos. 422 and 424. The land comprised in khasra No. 423 was gair mumkin passage and the defendant had no right or title in the said passage except to use the same as passage. In the month of April, 2008, the defendant started raising construction in the land comprised in khasra Nos. 423 and 424 and threatened to open windows, doors and ventilators towards the land comprised in khasra No. 421.
(3.) UPON notice, the defendant put in appearance and filed written statement denying the averments made in the plaint. It is denied that there is any encroachment upon the passage comprised in khasra No. 423 as alleged by the plaintiff. The defendant never intended to open any door, window or ventilator of her house into khasra No. 421 in which she is not a co -sharer. Bhupinder Singh, Kanungo after demarcation found that the defendant was raising construction of her house in khasra Nos. 422 and 424 and the house under construction was found at a distance of 8' from khasra No. 421.;