SANJY DHAR - (1.)The appellant has filed this civil second appeal against the judgment and decree dated 30.11.2013 passed by the Principal District Judge, Samba( for short, 'the Appellate Court'), whereby the learned Appellate Court has set aside the judgment and decree dated 23.11.2011 passed by the Additional Munsiff, Samba in a suit titled Ashok Dutta v. Raghubir Singh.
(2.)The facts giving rise to the filing of instant appeal are that the respondent (hereinafter referred to as 'the plaintiff') filed a suit for mandatory and permanent prohibitory injunction against the appellant (hereinafter referred to as 'the defendant') before the Court of Additional Munsiff, Samba. In the suit the plaintiff claimed that he has purchased a plot of land in Ward no.4 Vijaypur by virtue of a registered sale deed dated 25.04.1988. According to the plaintiff, there was a ten feet wide lane abutting his house, which he had constructed on the aforesaid land after obtaining proper permission from the Notified Area Committee, Vijaypur. It was alleged that the defendant while constructing his house near the house of the plaintiff, has encroached on the aforesaid lane to the extent of five feet, as a result of which it has become very difficult for the vehicles to enter the said lane. On the basis of these facts, plaintiff sought a mandatory injunction directing the defendant to demolish the construction raised by him on the encroached portion of the lane with a further injunction against the defendant prohibiting him from raising any further construction or encroaching on the aforesaid lane.
(3.)The defendant filed his written statement to the plaint. Besides claiming that the suit of the plaintiff was not maintainable, it was contended that full description of the property as well as the lane in question has not been given in the plaint. It was further contended by the defendant in the written statement that he had constructed the house on his land in the year 1980 and it was only in the year 1988 that the plaintiff had purchased the land on which he has constructed his house. According to the defendant, it was very much in the knowledge of the plaintiff that the defendant had covered his land and, as such, plaintiff could not ask the defendant to remove the construction on the lane in question. After completion of pleadings, the Trial Court framed the following issues:-
'1. Whether the defendant has raised illegal and forcible construction over the 10 ft. wide lane as detailed and described in the plaint and thereby, whether there exists public lane as described in suit and is being used by plaintiff along with other public?....OPP

2. In case the issue No.1 is proved in affirmative whether the defendant has illegally, forcibly and without any right encroached upon the suit lane approx. 5 ft in width? ...OPP

3. Whether the suit of the plaintiff is not maintainable as there is no description of the suit lane? ....OPD

4. Relief if any to which the plaintiff is entitled?'