The central legal point established in the judgment is the interpretation and admissibility of documentary evidence under the Evidence Act to establish ownership and existence of property, and the necessity of mandatory injunction in cases of encroachment.

Rakesh Kumar Garg, J.

1. This is defendants second appeal challengeing the judgment and decree of the lower appellate court whereby the suit of the plaintiff/respondent has been decreed and the appellant has been restrained from making any encroachment over the street in question and further a decree for mandatory injunction directing the appellant to remove the wall BC as shown in the site plan Ex. X prepared by the local commissioner and site plan Mark XI produced by the plaintiff/respondent. As per the averments, the plaintiff/respondent was the owner in possession of the house shown in green colour in the site plan Mark X which he had constructed after purchasing the vacant plot vide sale deed dated 15.3.1973. It was further averred that on the northern side of the house of the plaintiff/respondent, a 10 feet wide street shown as ABCD red colour in the site plan, which was also recorded in the sale deed. On the northern side adjoining the street, there was the house of the defendant but there was no door/window etc. of the house of the defendant towards the street. The plaintiff had access to his house from this street. The appellant/defendant wanted to encroach upon the street illegally and forcibly and for this reason, he collected the building material and tried to make encroachment upon the street in dispute by raising construction over the same. It was further stated that on 5.10.2000, the defendant illegally and forcibly constructed wall upto the height of 6 feet, 10 feet in length and of thickness of 4 inches at the spot, shown in red colour abc in the site plan. Hence, this suit.

2. Upon notice, defendant/appellant filed written statement taking preliminary objections. On merits, it was admitted that there is a street of 10 feet width but the site plan Mark X was not correct. It was also admitted that on the northern side of the wall adjoining to the street, there was house of the defendant/appellant. Allegations with regard to encroachment were denied. It was further submitted that the defendant had already made some construction on portion DEFG in the site plan which is part and parcel of his house and was not part of the street.

3. The trial court dismissed the suit. However, while the appellate court allowed the appeal filed by the plaintiff/respondent while allowing the appeal, the appellate court observed as under:-

"19. After giving my thoughtful consideration to the rival contentions and going through the record of the case, I am of the considered view that the impugned decree and judgment passed by the learned trial Court are not sustainable. First of all, the learned trial court was required to go into the question as to if the disputed property is part of the street or not. The appellant/plaintiff has produced the sale deed Ex. P6 vide which he had purchased the plot in 1973. In the said sale deed, a 10 ft. wide street has been shown on the northern site of the property purchased by the appellant/plaintiff. The site plan attached with the said statement has also been proved as Ex. P7. Even in the said stated, the street in question has been shown. Further it is an admitted fact that there is house of appellant/plaintiff on the southern side of the property in question, house of defendant on the northern side of the property in question and property of one Ilam Din on the western side of the property in question. The State number 2699 dated 14.9.1979 Ex. PX is the sale deed relating to the property of Ilam Din and the site plan Ex. PY is part and parcel of the said sale deed. The defendant admitted in his cross-examination that ilam Din had purchased the property from Gafoor, Babu and Barkat and he also admitted that the sale deed relating to the house of Ilam Din Ex. PX. In the said sale deed, 10 Feet wide street, plot of Nathu and Abdulla having shown on the eastern side of the said house. Even in the site plan Ex. PY, the street in question has been shown up to the house of Ilam Din. Therefore,