OM PRAKASH Vs. CHAND

JUDGEMENT

(1.) This second appeal by appellants/ defendants arises out of judgement and decree dated 19.4 82 passed by Additional Civil Judge , Mathura in Civil Appeal No. 16 of 80, Misri Lal (since dead) and another versus Om Prakash and others, arising out of judgement and decree dated 15.12.79 passed by VIII Additional Munsif, Mathura on O.S.No. 393 of 1974, Misri Lal and another versus Om Prakash and others. By the impugned judgement and decree lower appellate court has partly allowed plaintiff's suit for possession but has dismissed it for permanent prohibitary injunction, which decree of possession has now been challenged in this second appeal by the appellants/ defendants.

(2.) Plaintiffs Misri lal and Onkar Singh filed O.S.No. 393 of 1974, Misri Lal and another versus Om Prakash and others before VIII Additional Munsif , Mathura for possession over suit property depicted by letters A,B,C,D in the map and for prohibitary injunction restraining appellants/ defendants, Om Prakash, Dina, Gopi, Damodar, and Jagdish from raising any construction and changing the nature of the said property. Plaintiff's case was that under a "Izzazatnama" he had taken 250 Sq.Yards of land, a portion of plot no.550 (old plot No. 1523) of Khata No. 129 situated in village Madhuri Khurd, Pargana and district Mathura, shown by letters A,B,C,D in the plaint map, from it's Zamindar Purshottam Lal, dated 22.11.42, and over the suit land he had constructed a katcha Nohra for rearing his cattle and for using it as a go-down to store Burji, Bitore(cow dung cakes) etc. Plaintiff Misri Lal had also planted a tamarind tree over the suit property and at the time of abolition of zamindari both, Nohra and tree, were existing on suit property and therefore, aforesaid land taken by "Izzazatnama" was settled with the plaintiffs u/s 9 of UPZA & LR Act. As a result of partition between father and sons, some portion of the property went to Onkar Singh plaintiff/ respondent no.2, who was the son of plaintiff no.1, and who since then was in peaceful possession over it. Said property never vested with Gaon Sabha nor Gaon Sabha had allotted it to anybody. In the rainy season, katcha Nohra caved in but the reminiscent of it's walls could be very well located. In due course of time plaintiffs were made aware that Gaon Sabha has allotted land in question(suit property) to appellants defendants Om Prakash and Dina by carving out plots and they, forcibly with police assistance, had started raising constructions over the suit property. As an emergent step plaintiffs wielded Magistrate/SDM's power u/s 145 Cr.P.C. but his endeavour failed as his application to initiate criminal proceeding under the aforesaid section was rejected by the SDM on 18.11.74, as no apprehension of breach of peace exited in his opinion. It was the above background which necessitated plaintiffs/ respondents to initiate and file O.S.No. 393 of 1974, Misri Lal and another versus Om Prakash and Others, before VIII Additional Munsif, Mathura, seeking reliefs of possession and permanent prohibitary injunction against the appellants/ defendants to save their suit property.

(3.) Appellants/ defendants contested the suit and their case in their written statements were that plaintiffs/ respondents were never the owners in possession of the suit property, which, in fact, belonged to Gaon Sabha and plaintiffs/ respondents case that they had taken the property from Zamindar and had constructed Nohra over it to rear his live stocks and for storing his burji and Bitora(cow dung cakes) is all false. "Izzazatnama" of the plaintiffs/ respondents is a sham and forged document and does not confer any right of ownership and possession over the suit property on the plaintiffs/ respondents. Suit property was never settled with plaintiff No.1 and since there was partition between plaintiffs no.1 and 2 , therefore plaintiff no. 2 was never in possession over any portion of the suit property. Suit property belonged to Gaon Sabha and defendants were in possession over it since last thirty years and their burji and Bitora(cow dung cakes) exist over it. Suit property is adjacent to the house and nohra of defendants over their chappar also exist. To avod legal complications defendants no. 1&2 had purchased suit property from Gaon Sabha on 30.9.73 and in April'74 , they had constructed their nohra over it and they were in settled possession over property in the suit. !45 Cr.P.C. proceedings started by the plaintiffs were dropped by SDM after hearing both the sides and plaint map is incorrect and total area of the suit property is 350Sq. yards and not 250Sq. yards as claimed by the plaintiffs. Defendants also pleaded that the suit was barred by section 23 Specific Relief Act and Article 64 of Limitation Act. They also took objection to court fees and their case is that the suit was undervalued and court fees paid was insufficient.