The plaintiff's individual right was affected by the encroachment, justifying the suit under Section 91 of the CPC.

AMOL RATTAN SINGH, J.

1. This is an appeal by the defendants in a suit filed by the respondent-plaintiff (hereinafter to be referred to as the plaintiff), seeking a decree of permanent prohibitory injunction, as also mandatory injunction, against the present appellants-defendants (hereinafter to be referred to as the present appellants), to restore the original condition of a street shown in the site plan submitted alongwith the plaint. The prohibitory injunction was to the effect that the defendants be restrained from constructing any further in the street, in any manner, and encroaching upon it, thereby creating any type of nuisance and danger to the family of the plaintiff.

2. The facts, as taken from the judgments of the Courts below, are that the plaintiff is stated to be a permanent resident of Simliwas, Tehsil Tosham, District Bhiwani, otherwise residing at Bhiwani. The street in question was stated to be situated within the 'Lal Dora' of the village and was said to be 19-20 feet wide on its northern side and 15 feet wide on the eastern side, in Kirti Nagar, Bhiwani and was being used by the plaintiff, the defendants and the general public.

It was further stated that it being a “kaccha” street, the appellant had dug up a foundation upto 3 feet deep, as shown in the site plan, to construct a house and had thereby encroached upon the street, making it narrower than it actually was.

It was further stated in the plaint that the house of the present appellants was situated near the land and that they were in the habit of exercising their muscle power and had no faith in law.

Consequently, the suit had been filed on 17.04.2008.

3. Upon notice issued, the present appellants (defendants) appeared and filed a written statement taking the usual preliminary objections with regard to locus standi, maintainability etc. further contending that the plaintiff was the owner of 6 marlas of land situated at Bhiwani Lohar, and had constructed on land more than was in his ownership. The appellants-defendants had purchased the land by way of two sale deeds bearing nos. 63 and 64, dated 04.04.2008. The plaintiff also wanted to purchase the land but was unable to do so and consequently, bore a grudge against the present appellants.

It was further contended in the written statement that the house of the plaintiff was situated in Bhiwani Lohar, whereas the disputed land was in Palwas, with no passage of Palwas through the land of Bhiwani Lohar, and that no such passage had been recorded in the aks-shijra and Mussavi.

It was further contended that no encroachment had been made by the defendants and that the passage was in the southern direction of the land purchased by the appellants- defendants, situated in village Palwas and was 15 feet wide.

Other contents of the plaint were also denied by the appellants-defendants.

4. No replication having been filed, the following issues were framed by the learned Civil Judge (Junior Division), Bhiwani:-

“1. Whether the plaintiff is entitled to decree of permanent injunction as prayed for in the head note of the plaint? OPP

2. If Issue No. 1 is proved, then whether the plaintiff is entitled to decree of mandatory injunction as prayed for in the head note of the plaint? OPD

3. Whether the plaintiff has no locus standi or cause of action to file the present suit? OPD

4. Whether the suit is not maintainable in its present form? OPD

5. Whether the suit is bad for mis-joinder & non-joinder of necessary parties? OPD

6. Whether plaintiff is estopped by his own act and conduct from filing the present suit? OPD

7. Whether plaintiff has not come to the Court with clean hands? OPD

8. Relief.”

5. The plaintiff examined himself by way of oral evidence and tendered the jamabandi of village Bhiwani Lohar, for the year 2002-03, as Ex.P1, a site plan Ex.P3, a ration-card and an application made to the Municipal Committee as Exs.P4 and P5 respectively and the aks-shijra as Ex.P6.

The defendants examined one Hari Ram, In-charge Building