HANSO DEVI Vs. CHANDRU

JUDGEMENT

(1.) This appeal has impugned the judgment and decree dated 15.12.2007 which has reversed the finding of the trial judge dated 27.1.2005. Vide judgment and decree dated 27.1.2005 the suit filed by the plaintiff Hanso Devi seeking permanent and mandatory injunction to the effect that that the defendant be directed to remove the pucca wall constructed upon the suit property (as described at point BCDE in Khasra No.11/8/2 (2-4), 7/2 (3-4) as shown in red colour in the site plan situated within the revenue estate of Jharoda Majra Burari, Delhi); as also a decree of permanent injunction restraining the defendant from interfering in the peaceful possession of the plaintiff had been decreed. The impugned judgment had reversed this finding; suit of the plaintiff stood dismissed.

(2.) Shri Khem Chand father of the plaintiff and Shri Gokal father of the defendants were real brothers and joint owners in respect of agricultural land bearing khasra no. 2/22/2(0-16), 2/22/2(3-6), 24(4-16), 11/2(4-16), 3(4-16), 4(4-16), 7/2(3-4), 8/2(3- 4) and 9/2(2-4) total measuring area of 32 bighas and 18 biswas within the revenue estate of village Jhaoda Majra, Burari. During life time of fathers of the parties, oral partition took place. After death of Shri Khem Chand in 1966 plaintiff being only legal heir succeeded to his share and mutation was recorded. In 1971-72 father of defendants also died and defendants succeeded to his share. Now plaintiff is co-sharer of share in total land as depicted (in yellow and red colour) in the site plan. Land of the defendants is shown in green and blue colour in the site plan. Land of the plaintiff was surrounded by barbed wire from side of defendant no. 1. The said wire was removed from points B to C by the defendants and they tried to fix the same from point B to E with a view to obstruct the entry of plaintiff on his land shown in red colour. On 13.03.1990 Local Commissioner inspected the property; defendant no. 1 had encroached upon a portion of property of the plaintiff and constructed pucca wall between points C and F; two handpumps and a chapper had also been installed. Hence the present suit.

(3.) In the Written Statement of defendant No. 1 it was admitted that the land had since been partitioned orally; the site plan filed by the plaintiff had been disputed. A separate site plan depicting share of the defendants have been filed on record; other averments were denied; it was stated that share of the plaintiff has already been sold by the plaintiff.