YASIN Vs. SARIF

JUDGEMENT

(1.) THIS appeal, preferred under Section 100 of the Code of Civil Procedure, 1908, (herein after referred as Code of Civil Procedure ) is directed against the judgment and decree dated 25 -01 -1985, passed by Additional District Judge, Saharanpur, in civil appeal No. 323 of 1980, whereby judgment and decree dated 21 -08 -1980, passed in original suit No. 179 of 1973, by trial court (Civil Judge, Roorkee) is set aside and the suit is dismissed. (Earlier Tehsil -Roorkee was part of District Saharanpur).

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

(3.) THE Defendants (present Respondents No. 1 to 5) contested the suit and denied the allegations contained in the plaint. However, it is admitted in the written statement by the Defendants that earlier suit No. 30 of 1969, was instituted by the Plaintiffs in respect of same land in which plaint was returned to the Plaintiffs on the ground that the valuation of suit was beyond the pecuniary jurisdiction of Munsif Roorkee. It is also admitted by the Defendants that thereafter Plaintiffs instituted suit No. 15 of 1971, before Civil Judge, Roorkee and said suit was dismissed in default of the Plaintiffs. It is further admitted that on application of the Plaintiffs, the restoration of suit was directed on the condition that the Plaintiffs would pay Rs. 75/ - as costs to the Defendants. It is also admitted that Plaintiffs preferred revision against the imposition of costs and the revisional court reduced the costs to Rs. 50/ - only, but the same also remained unpaid. Hence suit No. 15 of 1971 remained dismissed. As to the rest of contents in the plaint, the same are denied. In the additional pleas, the Defendants pleaded that it is wrong to say that the Plaintiffs are owners in possession of the land in suit. It is further pleaded that in fact the land in suit was a khudkast land of the Defendants over which the Defendants established their abadi since March, 1968. It is alleged that the foundation was laid in March 1968, and the walls were raised between March 1968 and July 1968. Denying that in the panchayat, it was agreed that on payment of Rs. 500/ - by the Plaintiffs to the Defendants, they were required to remove the construction, it is stated that neither such agreement was arrived at nor any payment was made. It is also pleaded that the suit is barred by time. It is further pleaded that suit is barred by Section 38 and 41 of Specific Relief Act, 1963.