HARI CHAND ALIAS HARISH CHANDRA Vs. DAULAT RAM

JUDGEMENT

(1.) This appeal by special leave is against the judgment and decree dated 21st December, 1970 of the Allahabad High Court in Second Appeal No. 2757 of 1963 allowing the appeal on setting aside the judgment and decree of the court of appeal below and dismissing the plaintiffs suit.

(2.) The plaintiff Hari Chand alias Harish Chandra instituted suit No. 6 10 of 1961 in the court of the Munsif, Agra for recovery of possession of the disputed land shown in red colour attached to the plan marked with letters GCDH. on demolition of the unauthorised constructions made thereon by the defendant alleging inter alia that the plaintiff became owner in possession of a piece of land measuring 1580 Sq. ft. situated at Sultanpura, Agra Cantt, designated as No. 164A, and shown in the plan attached thereto with letters A, B, C, D, E, F on the basis of a registered sale deed dated 9th May, 1961, from Ramji Lal owner of the said property. It has been further alleged that the plaintiff started to build a compound wall over and around his land after his purchase. The defendant taking undue advantage of the plaintiffs temporary absence from Agra, wrongfully encroached and trespassed along the whole Northern length of the plaintiff's land measuring North to South about 4 ft. and East to West about 621/2 ft. by hurriedly raising a low mud wall and extending his khaprail thatch over it. It has been shown in the attached plan in red colour with letters G, C, D and H. It has been further alleged that in spite of plaintiffs objection against the said wrongful encroachment and trespass the defendant did tot pay any heed to it. It has also been pleaded that the cause of action of the suit primarily arose on or about 22nd May, 1961 when the defendant made the encroachment and wrongful constructions over the plaintiffs land as well as it arose on 4-6-1961 when the defendant failed to remove the encroachment in spite of the plaintiffs notice. Hence this suit has been instituted.

(3.) The defendant filed a written statement denying that the plaintiff was owner of the land shown by GCDH in the plan attached to the plaint. The defendant also denied the correctness of the sale deed dated 9-5-1961. It has been stated that the land marked GCDH as shown in red colour in the plan attached to the plaint never belonged to the plaintiff. The wall and khaprail belonging to the contesting defendant have been existing at their present site since time immemorial The plaintiff's allegation that the contesting defendant has constructed the wall and extended the khaprail (tiled roof) in May 1961 is totally 'wrong and baseless. It has been further stated that he did not make any new construction. The defendant also stated that the plaintiff illegally tried to remove his kutcha wall and the tiled roof situate at the place marked G, C, D and H. Accordingly; on 25-5-1961 the contesting defendant gave a notice to the plaintiff mentioning the actual facts to which he gave a wrong reply. The plaintiffs allegation that the wall and tiled roof of the defendant encroach upon the plaintiffs land is totally wrong, false and baseless. It has been stated that the wall and tiled roof belong to the contesting defendant and the eaves of tiled roof have been at the same place since time immemorial where they are at present. He has been regularly and openly enjoying all the proprietary rights and rights of adverse possession in respect of the land aforesaid. Under Sec. 142 of the Limitation Act, the contesting defendant became the absolute owner of the land in dispute on the basis of the adverse possession as well and he has a tight of easement in the form of flowing of water from the tiled roof. The kuchha house No. 164 belonging to the contesting defendant has been existing at its site exactly in the same condition in which it was built by the defendant's grandfather. The eaves have been dropped at that very place and the khaprail has also been existing at that very place. The contesting defendant did not make any new construction as alleged by plaintiff in the plaint. Properties Nos. 163 and 164 consisted of kutcha houses. The contesting defendant demolished the Property No. 163 which had come to his share and got it pucca built. Property No. 164 is a khaprail in which the contesting defendant is living and was living at the time of partition. The defendant, therefore, states that the suit is liable to be dismissed.