Vinod K. Sharma, J. - (1.) This regular second appeal has been filed against the judgment and decree passed by the learned lower appellate Court vide which suit filed by the plaintiff respondent has been ordered to be decreed.
(2.) The plaintiff respondent filed a suit seeking decree for permanent injunction restraining the defendant from encroaching upon the passage of 2 karams running from Pataudi-Bhorakalan road along side the property of the plaintiff and defendant, as shown in red colour in the site plan attached with the plaint and further a decree for mandatory injunction directing the defendant to remove any encroachment found to have been made by him on the said passage and to restore the same in its original position. The learned trial Court went into the question of ownership and recorded a finding that the plaintiff has failed to prove that she was owner in possession of the property in dispute and, therefore, the injunction was declined.
(3.) The learned lower appellate Court has reversed the said finding by observing as under:- "14. Now coming to the controversy relating to the passage in question, it is the specific case of the plaintiff that ingress and egress from Pataudi-Bhora Kalan road to her Khasra number has been blocked by the defendant by way of raising a wall at point AB upto the height of about plinth level as shown in red colour in the said site plan. Copy of the Aks-Sijra Ex. P-4 placed on the file clearly shows that a kacha rasta of 2 karams in width leads from Pataudi-Bhora Kalan road along with the properties of the parties. It may be also noted here that Sh. R.S. Yadav, Advocate, who was appointed as a local Commissioner by the learned trial Court vide its order dated 22.3.1994 on the application of the plaintiff, has also clearly reported in his report dated 5.4.1994 which is duly supported by a site plan that plaintiff used the kacha rasta marked by letters ABCD which has now been blocked by the defendant by incomplete construction of his shops. Local Commissioner has also observed in his report that at the time of the spot inspection defendant admitted that he had blocked the disputed rasta and would give another rasta for the plot of the plaintiff. No objections whatsoever were filed against aforesaid report of the Local Commissioner on behalf of the defendant; meaning thereby that he accepts the correctness of the R.S.A. No. said report. The learned lower Court has, however, failed to take note of the said report of the Local Commissioner which has consequently prejudiced the rights of the plaintiff." and consequently decreed the suit for injunction as claimed. However, while granting decree the learned lower appellate Court has also passed a decree to the effect that the plaintiff is owner in possession of the disputed khasra No. 305/5 (0-14), as detailed and described in para 1 of the plaint.;