ASHOK KUMAR Vs. GOPI CHANDA BAJAJ

JUDGEMENT

(1.) This appeal has been preferred by the defendants under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC), questioning the legality and propriety of the judgment and decree dated 03.05.2018 passed in Civil Suit No 27-A/2016, whereby the trial Court has decreed the plaintiff's claim for possession and injunction. The parties to this appeal shall be referred hereinafter as per their description in the Court below.

(2.) Briefly stated the facts of the case are that the plaintiff instituted a suit claiming possession and injunction with regard to the property in question admeasuring 20' x 75' (1500 square feet) of land situated at Village Kududand, Tahsil and District Bilaspur described in red colour in plaint Schedule-A, which is the part of the Khasra No.357/8 admeasuring 3750 square feet. According to the plaintiff, it was purchased by him from one Smt. Suman Lata Awasthi and a registered deed of sale dated 11.05.1981 was executed and the revenue papers were accordingly mutated in his name. It is pleaded further that the defendants had made an attempt to encroach his alleged land by putting a temporary shed (Thela) in the year 2003 and threatened to implicate him in connection with the offence punishable under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 when it was resisted by him. Further contention of him is that owing to the alleged illegal act of the defendants, a proceeding under Section 250 of the Chhattisgarh Land Revenue Code 1959 (hereinafter referred to as the 'Code of 1959') was initiated for removal of the alleged encroachment and in order to protect their possession, a suit for declaration of title and injunction was instituted by them which was registered as Civil Suit No. 108-A/2009. It is pleaded further that the said suit was dismissed by the trial Court vide its judgment and decree dated 09.12.2009 and the appeal preferred there against was also dismissed by the Appellate Court vide judgment and decree dated 21.04.2014 in Civil Appeal No. 18-A/2013 and has thus attained its finality by efflux of time. It is pleaded further that despite the refusal of their claim, the defendants have started a pakka construction over the alleged suit land, and therefore, he has been constrained to institute a suit in the instant nature.

(3.) While denying the execution of the alleged registered deed of sale dated 11.05.1981, the defendants have raised a counter claim by claiming declaration of their title and injunction by submitting, inter alia, that their predecessor-in-interest, namely, Kanhaiya Lal had worked as a Kamiya (Halwaha) to the said Smt. Suman Lata Awasthi and had constructed a house over the suit land and was residing over there and after his sad demise, they (defendants) have been residing without any obstruction being raised by said Smt. Suman Lata Awasthi and have thus, perfected their interest by way of adverse possession. It is pleaded further that in an earlier suit the plaintiff herein (who was the defendant in the said suit) had failed to raise a counter claim, therefore, he is precluded from raising his interest over the suit land. The claim of him as made, therefore, deserves to be dismissed.