- (1.) By way of this appeal, the plaintiff has challenged the judgment and decrees of the Courts below, whereby his suit for mandatory injunction with consequential relief of permanent injunction against the defendant-respondent has been dismissed.
(2.) According to the plaintiff-appellant, he is owner in possession of house shown in the site plan Ex.P-1, situated within the abadi of village Butana Kundu, Tehsil Gohana. Subject matter of dispute is a wall and the portion as shown in the site plan. According to the plaintiff- appellant disputed portion is the part of his house. It is alleged by him that about two months prior to the filing of the suit, defendant has installed a door, a window and a Mori illegally and forcibly in the wall, which have opened in the portion of the plaintiff's house. Plaintiff further alleged that defendant was threatening to raise construction in the disputed portion. With these allegations, plaintiff prayed for a decree of mandatory injunction to direct the defendant to close the door, window and Mori installed in wall and further to pass a decree of permanent injunction to restrain him from raising any construction in the wall or in the portion of the plaintiff's house.
(3.) Defendant in his written statement disputed the correctness of the site plan of plaintiff. He denied the plaintiff to be owner in possession of the disputed portion or that of the disputed wall. According to him, plaintiff was owner in possession of a house situated in the western side of his house bearing No.467. There is a street bearing No.499 up to the house of the plaintiff. 4/5 years ago, plaintiff purchased half portion of plot No.461, which exists towards northern side of the house of the defendant. In between the house of the plaintiff towards northern side and that of his house in Southern side, there is street No.499 and under the guise of present suit, plaintiff wants to grab portion of street No.499(shown in site plan Ex.D1) forcibly and illegally. Street No.499 is owned by village Panchayat Butana Kundu. Defendant further submitted that he is owner in possession of plots No.462 and 468 and that street No.499 was made pucca by the panchayat 50 years ago up to portion AN as shown in site plan Ex.D1. Defendant further submitted that there is door, window, Mori of his house in the street(shown in the site plain) since the time of construction of his house. As the street is owned by Gram Panchayat, so he has got every right to open window and door etc.in the street. Defendant denied that his window or gate open in any portion of the house of the plaintiff. According to him, same open in the street. Defendant further claimed that wall as shown in the site plan Ex.D1 is his exclusive wall with which plaintiff has no concern. Defendant further submitted that the portion shown in the site plan is part of street No.449 and it is the plaintiff, who wants to encroach upon the same forcibly and illegally. Defendant submits that he will not raise any construction over the said portion as it is part of the street. Defendant further submitted that a dirty water channel also exists in the said street up to the house of the plaintiff. With the above stand and controverting all other averments of the plaintiff, defendant prayed for dismissal of the suit.;