PT GANGA PRASAD SHARMA Vs. BENI PRASAD SHARMA

JUDGEMENT

(1.) This second appeal has impugned the judgment and decree dated 26.3.1982 passed by the First Appellate Court which had reversed the judgment and decree of the Trial Judge dated 4.12.1979 vide which the suit of the plaintiff namely Beni Prasad Sharma was dismissed.

(2.) Briefly stated the factual matrix of the case is as follows; i. The respondent/plaintiff had filed a suit for possession against the defendant; he claims to be the owner of the plot of a land measuring 300 sq. yard i.e. 6 biswas, 9 x 27? comprising in Khasra No.390 Min Khewat No.44, Khata No.171, situated at Saleempur (Madipur) presently known as Rishi Nagar. He had purchased this plot of land from its owner Khubi Ram vide a registered sale deed dated RSA No.116/1982 21.9.1951 at consideration of Rs.300/-. Possession of the land had been taken over by the plaintiff. Possession remained with the plaintiff. The boundary of the plot was as under: i. East - Gali 12 ii. West - Another plot of vendor Khubi iii. North - Kacha Road, Mangolpuri which is now pakka iv. South - Factory of Harband Lal Gulati In January 1969 defendant took illegal and forcible possession of 186.5 sq. yards of the land owned by the plaintiff and constructed a house on a portion of it. In spite of oral requests of the plaintiff, the defendant did not vacate the property. Defendant has no right or title to remain the suit land. Suit for possession was accordingly filed. ii. Defendant contested the suit. It was stated that the suit was not properly valued for court fee; it is barred by limitation having been filed after 19 years. On merits, it was stated that the plaintiff had purchased the plot of land measuring 200 sq. yd. under his possession at a consideration of Rs.700/- in Khasra No.390 from Khubi Ram vide a registered sale deed dated 7.6.1952. He is in continuous possession since that date. Defendant has never been in possession of the land which is owned by the plaintiff. Defendant was transferred to Kashmir in 1962. On his re-transfer to Delhi in 1966 he had got a part of his house constructed. The land in his possession is owned by him. iii. Replication was filed reiterating the averments made in the plaint and denying the case as set up by the defendant. iv. On 9.6.1971, six issues were framed which on an RSA No.116/1982 application under Order 14 Rule 5 of the Code of Civil Procedure (hereinafter referred to as ,,the Code) were recast on 11.2.1976 they inter alia read as follows: 1. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP 2. Whether the plaintiff is owner of the disputed land shown yellow in the plan marked ,,A? OPP

(3.) Whether the plaintiff was in possession of the disputed plot till January, 1969? OPP