PHOOL SINGH Vs. SULTAN

JUDGEMENT

(1.) CM No. 4433/2018(Exemption) Exemption allowed subject to just exceptions. CM stands disposed of. CM No. 4434/2018(Delay in re-filing) For the reasons stated in the application, delay in re-filing is condoned. CM stands disposed of. RFA No. 113/2018 & CM No. 4432/2018 (stay) 1. This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) by the defendant in the suit impugning the judgment of the trial court dated 30.3.2017 by which the trial court has decreed the suit for possession in favour of the respondent/plaintiff and against the appellant/defendant with respect to the suit property admeasuring 62 sq. yds situated in Khasra No.230, in the Revenue Estate of Village Shikar Pur, Delhi as shown in the site plan Ex.PW1/3.

(2.) The subject suit was filed by the respondent/plaintiff for possession and injunction against the appellant/defendant with respect to the suit property pleading that he was allotted the suit property by the Gaon Sabha inasmuch as respondent/plaintiff was a landless person. The land was allotted in consolidation proceedings in the year 1971-72. Appellant/defendant is pleaded to be a land grabber of the village and it was pleaded that he had forcibly grabbed 5-6 plots of the people of the village. Respondent/plaintiff had constructed 3 rooms in the suit property and was using the same as a dwelling house when on account of the heavy rains, one room was ruined and one room became in dilapidated condition. Due to paucity of funds, the respondent/plaintiff could not construct the boundary wall around the whole property except constructing the front wall. Out of the adjacent plots some plots were of the appellant/defendant and the appellant/defendant had falsely started claiming rights in the suit plot of the respondent/plaintiff. Appellant/defendant tried to grab the suit property on 16.7.2010 and in which attempt he could not succeed. Respondent/plaintiff had even applied for demarcation to the Revenue Authorities but demarcation was not carried out on account of the influence of the appellant/defendant. Respondent/plaintiff thereafter filed a suit for mandatory and permanent injunction being suit no. 62/11 titled as Sultan Vs. Phool Singh and during pendency of which the appellant/defendant forcibly encroached on the suit property. Since in the earlier suit no relief for claim of possession was claimed therefore as per the legal advice respondent/plaintiff withdrew the suit as it had become infructuous and consequently thereafter the subject suit came to be filed on 2.12.2014 seeking the reliefs of possession and injunction.

(3.) Appellant/defendant contested the suit. It was pleaded that the present suit was liable to be dismissed on account of bar under Order II Rule 2 read with Order XXIII Rule 1 CPC as no permission was taken of the Court in which the earlier suit filed for injuction was pending and withdrawn for filing of a fresh suit on the same cause of action. It was also pleaded that appellant/defendant has become the owner of the suit property by adverse possession. It was also pleaded in the written statement that no objection was ever raised by the respondent/plaintiff during the lifetime of the father of the appellant/defendant or subsequently with regard to occupation of the suit property. The suit was therefore prayed to be dismissed.