CHHINDA Vs. SUNITA JAIN

JUDGEMENT

(1.) This Regular Second Appeal is filed by the appellant/defendant impugning the judgment of the first appellate court dated 26.11.2002 by which the first appellate court allowed the appeal of the respondents/plaintiffs and decreed their suit for possession by setting aside the judgment of the trial court dated 18.2.2002 which had dismissed the suit for possession.

(2.) The facts of the case are that the respondents/plaintiffs are the owners of plot no.M-6, Mehrauli Road, New Delhi and which was purchased by them vide registered conveyance deed dated 2.7.1969 from DLF Housing Construction Pvt. Ltd. The appellant/defendant was a way side scooter mechanic who started his work near the boundary wall of the adjoining land belonging to M/s. Purulator/Anand Automobiles and on the municipal land on which he had made encroachment. Appellant/defendant was prosecuted by the MCD several times and in order to save himself from the action of the MCD, the appellant/defendant trespassed into a portion of the plot M-6 owned by the respondents/plaintiffs which is shown in red in the site plan. Encroachment was made sometime in the year 1982 by making a door in the boundary wall. Since the appellant/defendant failed to vacate in spite of requests, the subject suit for possession came to be filed.

(3.) In the written statement the appellant/defendant claimed that he had not encroached upon any land of the respondents/plaintiffs but was sitting on the land belonging to the MCD. A mutual destructive defence was also taken by the appellant/defendant that no suit was maintainable against him because he had been sitting in the property of the respondents/plaintiffs for 1967 i.e 15 years prior to filing of the suit i.e a plea effectively of adverse possession.