1. This is plaintiff's second appeal arising out of a suit for injunction and for demolition of certain construction made by the defendant respondents over a passage between the respective houses of the parties.
2. The plaintiff averred that there was a 'Chowk' between the houses of the parties and the defendants Nos. 1 to 5 had unlawfully made an extension in their premises thereby encroaching the passage. The alleged encroachments were shown in the map Ex. 2 by red colour. Their measurements were mentioned in para 4 of the plaint. The defendants Nos. 1 to 4, who filed a joint written statement, denied to have made any encroachments. On the other hand, they claimed that the land exclusively belonged to them though they made a concession that the plaintiff had an easementary right of passage over their land.
3. The principal issue that came up for decision before the learned Munsif, before whom the suit was filed, was about the alleged encroachment by the defendants over the land in dispute. Both the sides examined evidence and in the result the learned Munsif partly decreed the suit in the following terms:
The plaintiff's suit is partly decreed. The defendants 1 to 4 are restrained from making any construction on the open land between the houses of the parties and from interfering with the easementary rights of the plaintiff.
It is further ordered that the portions of the Chabutra of defendant Nos. 1 to 4 (which is shown by red colour in Ex. 1 and by green and red colour in Ex. 2) which may be in excess of the measurements given in Ex. 1 site plan be demolished to the extent of the excess. The prayer for the removal of O.P. wall (in Ex. 2) is rejected.
4. Parties shall bear their own costs Ex. 1 site plan shall be part of the decree.
5. Aggrieved by the decree of the learned Munsif the plaintiff went up in appeal to the court of the Senior Civil Judge, Alwar. The learned Senior Civil Judge examined the merits and then felt that there was no force in the appeal. Accordingly, he dismissed it, & he dismissed the plaintiff's suit in toto, I may read the operative part of the judgment of the learned Senior Civil Judge.
6. 'I do not find any force in this appeal, therefore, it is hereby dismissed.
On the basis of the above finding, the judgment and decree of the lower court are set aside, the plaint is rejected and the suit of the plaintiff is dismissed with costs.'
7. It is in these circumstances that plaintiff has come up in second appeal to this Court.
8. learned Counsel for the appellant has challenged the correctness of the conclusion reached by the learned Senior Civil Judge. He maintains that the plaintiff should have been allowed the relief in full.
9. Now, whether the disputed land belongs to one or the other party or is common is a question of fact and no good reason has been shown for this finding. All the same the learned Senior Civil Judge was not justified in reversing the decree of the learned Munsif when he was dismissing the appeal. When the appeal was being dismissed the natural result was that the judgment and decree under appeal were kept intact. Therefore, there is apparent contradiction in the judgment of the learned Senior Civil Judge in that he has rejected the plaint and has dismissed the plaintiff's suit with costs.
10. That being so, I allow the second appeal in part and hereby restore the decree of the learned Munsif, Behror dated 6.11.63. The parties are left to bear their own costs.