AVADHESH PANDEY Vs. KRIPA SHANKAR PANDEY

JUDGEMENT

(1.) THIS appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 16.09.2009 passed by District Judge, Udham Singh Nagar in Civil appeal No.43 of 2008 whereby the said court has dismissed the appeal of the plaintiffs to the extent of the dismissal of the suit No.53 of 2006, by trial court [Civil Judge (Sr.Div.), Rudrapur, Udham Singh Nagar]. However, the decree passed by the trial court allowing the counter claim of the defendants has been set aside by lower Appellate court (District Judge, Udham Singh Nagar) and counter claim of defendants too has been rejected.

(2.) HEARD learned counsel for the parties and perused the lower court record.

(3.) THE defendants contested the suit and filed their written statement paper no. 26A in which it is admitted that plot/khasra no.48 A measuring 0.190 Hect. of land is recorded in the name of plaintiffs in the revenue record over which they are in occupation for agricultural purposes. Rest of pleas of the plaint are not admitted. It is pleaded in the written statement that there is no demarcation of boundaries between land of village Bhamrola and that of Bhigwara and entire area is known as Ramnagar. It is also pleaded in the written statement that the house of the defendant no.1 is situated over the land in suit which is not shown by plaintiffs in their plaint map. It is also pleaded that family of the defendant no.1 is living for last 15 years in said house. A counter plea has been taken by defendant no.1 and it has been stated that plaintiffs in order to grab of land of defendant no.1 has filed the suit. In additional pleas, it has been pleaded that plaintiff no.1 is a man of criminal record. Counter claim has been made stating that plot no.449M, 48,73,72,46,60,61,74,332 and 353 of Ramnagar (consisting villages Bhamrola and Bhigwara) is spread out in 15 acres and most of such land has been given to the families of the Freedom Fighters. It is also alleged that defendant no.2 has been unnecessarily impleaded in the suit. In the counter claim, relief has been sought that of injunction restraining the plaintiffs from interfering in peaceful possession of defendant no.1 in respect of the house situated over the disputed land.