Rakesh Kainthla, Judge

The present appeal is directed against the judgment and decree dated 02.05.2008, passed by the learned Additional District Judge, Fast Track Court, Una, District Una, H.P. (learned Appellate Court) vide which the judgment and decree dated 30.11.2000, passed by the learned Sub Judge, First Class, Court No.II, Amb, District Una H.P.(learned Trial Court) were set aside. (For the sake of convenience, the parties shall be referred to in the same manner as they were arrayed before the learned Trial court.

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for restraining the defendants from raising any construction, blocking the sewerage outlet/water pipe, encroaching upon and taking forcible possession of the area marked ABCD shown red in the site plan, being the northern portion of Khasra Nos. 2264, measuring 0-10 Marlas, bearing Khewat No. 318, Khatauni No. 456 as entered in Jamabandi for the year 1981-82 (hereinafter referred to as the suit land). An alternative relief for possession by way of removal of encroachment and demolition of the construction, if any, was also sought. It was pleaded that the suit land is owned and possessed by the plaintiff. The plaintiff has raised a construction shown in green and marked ‘M' in the site plan. He left some portion of the suit land vacant towards the North for repairs and whitewashing of his house. He has kept sewerage pipes and water outlets towards the vacant portion, and the vacant portion as required for the repair of the house, and removing the pipes in case of blockage. Defendants Nos. 1 and 2 are the owners of the adjacent land. The defendants threatened to raise a forcible construction over the area marked ABCD, shown red in the site plan, close the water outlet pipes and cover the sewerage pipes. The plaintiff requested the defendants not to do so, but in vain. Hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by the defendants by filing a written statement, taking preliminary objections regarding the lack of maintainability and cause of action, the plaintiff, having not approached the Court with clean hands, and the plaintiff being estopped by his act, conduct, acquiescence and laches to file the present suit. It was admitted that defendants No.1 and 2 are the owners of the adjacent land and defendant No.3 is the son of defendants No.1 and 2. The rest of the contents of the plaint were denied on the merits. It was asserted that the plaintiff covered the entire area owned by him by constructing his Abadi. Defendant No.1 is serving in the Navy, and defendant No. 2 is residing at the Gagret. Defendant No.1 laid the foundation over his land bearing Khasra number 2265, adjoining the suit land by spending more than ₹55,000/-. The plaintiff approached defendant No.1 and requested him to provide 2 feet wide space for the repair of his pipe. Defendant No.1 told the plaintiff that he had less land for his Abadi and would not be able to provide any land to the plaintiff. The defendant had completed the construction much before filing of the suit. Hence, it was prayed that the suit be dismissed.

No replication was filed.

The Ld. trial Court framed the following issues on 22.11.1993: -

1. Whether the plaintiff is entitled to the relief of permanent injunction? OPP.

2. Whether ABCD is part of Khasra No.2264, if so its effect? OPP

3. Whether plaintiff is estopped by his act and conduct? OPD.

4. Whether the suit is not maintainable? OPD.

5. Relief.

The parties were called upon to produce the evidence, and the plaintiff examined himself (PW-1), Sanjeev Kumar (PW-2), and Gurbachan Dass (PW-3). The defendant no. 1 examined himself (DW-1) and S.S. Chauhan (DW-3) (sic).

A Local Commissioner was also appointed by the learned Trial Court. The objections were filed to the report of the Local Commissioner, and the statements of Madan Lal (OW-1) and Ram Rattan (OW-2)