JUDGMENT :

Alka Sarin, J.

CM-2766-C-2018

1. For the reasons mentioned therein, the application for condonation of 7 days delay in refiling the present appeal is allowed. The delay of 7 days in refiling the present appeal is condoned.

RSA-1120-2018

2. The present appeal is by the plaintiff-appellant against the judgements and decrees dated 25.03.2011 and 04.07.2017 passed by the Trial Court and the First Appellate Court dismissing his suit.

3. Briefly, the facts are that the plaintiff-appellant filed a suit for permanent injunction for restraining the defendant-respondents from encroaching upon or raising any construction in Plot Nos.201, 213, 216, 220A, 220B with an area measuring 443.50 square yards in the revenue estate of the village Meharbaan, Tehsil and District Ludhiana and from encroaching upon a street. A further prayer for grant of mandatory injunction was also made for directing the defendant-respondents to remove the wall from the portion which has been encroached upon by them. As per the plaintiff-appellant he had purchased the suit land from one Sohan Singh vide registered sale deed dated 28.04.1994 and had become owner in possession but the defendant-respondents were bent upon to encroach upon the suit land and had infact encroached upon a small portion of suit land. Hence, the suit. In the written statement the defendant-respondents raised preliminary objections regarding the suit being false and frivolous, not coming to Court with clean hands, maintainability, limitation, court fee, non-joinder and misjoinder of parties, etc. On merits it was denied that the suit land was purchased by plaintiff-appellant from Sohan Singh and the possession of the plaintiff-appellant over the suit land was also denied. It was submitted that the report of the Local Commissioner and the sale deed relied upon by the plaintiff-appellant did not tally with his pleadings and that the defendant-respondents had not encroached upon any area owned by the plaintiff-appellant and that they had raised construction in the area owned by them which they had purchased vide five sale deeds. Replication was filed reiterating the contents of the plaint and denying the averments made in the written statement.

4. The Trial Court framed the following issues :

1. Whether the plaintiff is in possession over the plot marked red colour in the site pan ? OPP

2. Whether there existed any street as shown in green colour in the site plan attached with the plaint ? OPP

3. Whether plaintiff is entitled to injunction as prayed for ? OPP

4. Whether plaintiff has not come to court with clean hands, if so, its effect ? OPD

5. Whether plaintiff is entitled to mandatory injunction as prayed for ? OPP

6. Whether the present suit is not maintainable ? OPD

7. Whether plaintiff has got no cause of action ? OPD

8. Relief.

5. Vide judgement and decree dated 25.03.2011 the Trial Court dismissed the suit of the plaintiff-appellant. His appeal was also dismissed by the First Appellate Court vide judgement and decree dated 04.07.2017. Hence, the present regular second appeal. The present appeal is accompanied with an application (CM-2767-C-2018) for production of additional evidence in the form of a demarcation report dated 05.05.1994.

6. Learned counsel for the plaintiff-appellant has argued that both the Courts have erred in dismissing his suit. It is urged that the plaintiff-appellant had proved his possession and the hostile acts by the defendant-respondents and therefore the suit ought to have been decreed. He submitted that the existence of the street was proved by the demarcation report sought to be produced now as additional evidence.

7. Heard learned counsel for the plaintiff-appellant.

8. The plaintiff-appellant had come to Court complaining that the defendant-respondents were encroaching the area owned by him as also were encroaching upon a street next to his plots and that they be restrained from doing so. The Courts below found that the plaintiff-appellant failed to prove that the d