Surinder Gupta, J. - (1.) This is second appeal against the judgment passed by the Civil Judge (Senior Division), Sonipat, decreeing the suit of the plaintiffs and directing the defendants to remove the construction in the shape of wall at line AB and CD as shown in the site plan and further restraining the defendants from encroaching upon or raising any construction in the area of street.
(2.) Case of the plaintiffs, in brief, is that site shown with red colour in the site plan (Ex.P4) is a street no.781 running from north to south in the immediate west of plot No. 236/1. Width of the street is 15 feet and this street gets connected with street No. 782 in the north and 780 in the south. Plot No. 236/1 belonging to plaintiff and in the east of this plot, there is plot No. 236/2 belonging to defendants. Earlier, plot No. 236/1 and 236/2 were comprised of one plot bearing khasra No. 236 but it was later on bifurcated into two plots by way of partition as per the decree passed in partition suit No. 294/1979 decided on 16.04.1983. Later on, defendant tried to take forcible possession of plot No. 236/1 and plaintiff filed a suit for permanent injunction which was decreed against the defendants on 03.08.1991, and defendants were restrained from dispossessing the plaintiffs from plot No. 236/1 and street and some vacant area of abadi deh lying in the west of the disputed street. Plaintiffs filed execution petition to take possession of plot No. 236/1 from the defendants and in those proceedings, Bhagwan Dass, retired Kanoongo was appointed as local commissioner with the consent of both the parties who submitted his report in July, 1992 confirming the above plea raised by the plaintiff. Another local commissioner was appointed to find out the existing position and he submitted his report on July 18, 1992. Thereafter, the defendants removed the southern wall of plot No. 236/1 and delivered access to the plaintiffs to their plot No. 236/1 through street No. 780 towards south. Plaintiffs constructed eastern wall of their plot No. 236/1 and the western side is lying vacant. The defendants have blocked the street bearing No. 781 by constructing two walls AB and CD and have also threatened to raise wall at the line BC without having any legal right. They were requested to remove the wall but in vain. Hence, this suit.
(3.) The defendants(appellants) contested the claim of plaintiffs inter -alia pleading that the suit pertains to street No. 781, which vests in Gram Panchayat and proceedings under Sec. 7 of Punjab Village Common Land (Regulation) Act, 1961 were already pending in the Court of Assistant Collector 1st Grade, Sonipat, as such, civil Court has got no jurisdiction to adjudicate the matter in controversy. The locus standi of the plaintiffs to file the suit for and on behalf of other inhabitants of the village, was also challenged. They have dragged the defendants (appellants) into unnecessary litigation. Bhagwan Dass, local commissioner was appointed in execution proceedings by the executing Court to demarcate plot No. 236. While submitting his report, he did not take into consideration site plan of abadi deh and the defendants filed objections against the report of local commissioner. No second local commissioner was appointed to locate plot No. 236/1. The plaintiffs have raised eastern wall of their plot No. 236/1 at wrong place. Wall AB and DC were constructed in the year 1979 because actual location of their plot no. 236/2 is at the place where they have constructed these walls. The defendants who are owners of plot No. 236/2 are within their right to make any construction over the same. The land marked as ABCD in the site plan is part of plot No. 236/2.;