Hari Ram vs Jyoti Prasad & Anr

4. The suit was filed by the respondent herein contending inter alia that all the six persons including respondent No. 1 have their common interest in the disputed street alongwith co- inhabitants of the same area. It was stated that the residential 3 houses of the respondents are falling in the site plan which indicates that there is a common street for ingress and egress of the general public. It was alleged in the plaint that earlier Bal Kishan Dass who was examined as PW-4 was the original owner of the entire area out of which he curved out a colony selling plots in favour of various parties. It was also stated in the plaint that at that time itself a 10 feet wide public street was left on the ground as detailed in the site plan for the common use of all the plot holders of the colony, but further allegation was that the appellant/defendant from the time of possession of his plot had evil eye on the aforesaid disputed street and the defendant No. 1 and he namely defendant No. 2 encroached upon substantial part of the same making the street narrowed down causing inconvenience to the users of the said street. Incidentally the suit was filed invoking Order I Rule 8 of Code of Civil Procedure [called in short `C.P.C.']. 4

5. In the plaint it was further stated that earlier the respondent No. 1 as complainant filed a complaint under Section 133 of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C.") which was decided in favour of the plaintiff/respondent No. 1 and the said judgment was passed by the SDM.

8. To substantiate his case, the plaintiff/respondent No. 1 6 examined 8 witnesses and produced some documents whereas the present appellant as defendant No. 2 examined himself as DW-1 as a sole witness. After recording the evidence adduced by the parties the learned Civil Judge (Junior Division) heard the parties and thereafter by a judgment and decree dated 6.12.2007 decreed the suit and a permanent injunction was issued directing the removal of unauthorized construction from the ground as shown in the site plan. Since, the defendant No. 1 had already removed his portion of illegal construction, the present appellant was given one month's time to remove all such constructions failing which respondent No. 1 was given their legal right to get the said construction removed on his own expenses which was allowed to be recovered from the defendants. The defendants were further restrained from raising any further construction in future on the aforesaid 10 feet Rasta as detailed in PW - 7A.

24. According to the appellant no official document was placed and no official witness was examined to prove and establish that the suit land was a public street in which encroachment is made by the appellant. At this stage it would be appropriate to mention that the suit was initially instituted against two defendants namely defendant No. 1 and defendant No. 2. The appellant herein was defendant No. 2 in the said suit. So far as defendant No. 1 is concerned, the records disclose that the Panchayat of the area took a decision that both of them have encroached upon a public property and the street and therefore they should remove the encroachment. It is disclosed from the records that pursuant to the aforesaid decision of the Panchayat, the defendant No. 1 removed his encroachment after 17 admitting that he had also encroached upon some area of the 10 feet wide street which fact he admitted before the panchayat and later on he removed the said encroachment. The aforesaid fact is established from the statements of PW-1. Jyoti Parshad, PW-5 - Sadhu Ram and PW-6 - Ram Pal who were present and participated in the said Panchayat also corroborated the said admission before the Panchayat.

29. We, therefore, find no merit in this appeal which is dismissed with costs, which is assessed by us at Rs. 10,000/-. The decree passed by the trial court is confirmed. If the appellant fails to vacate and remove the unauthorized encroachment within a period of 60 days from today, it will be open for the plaintiff/respondent No. 1 to get the decree executed in accordance with law.

30. In terms of the aforesaid observations and directions, the appeal is dismissed.

........................J [Dr. Mukundakam Sharma] ........................J [Anil R. Dave] New Delhi January 27, 2011