DEEPAK Vs. KAILASH

JUDGEMENT

(1.) Original Suit No. 475/2001 Kailash Nath v. Deepak & Ors, was initially filed for the relief of permanent injunction regarding bhumidhari right of land of plot no. 574, situated in village Kusaurah. The plaint case in brief was that plaintiff is owner and bhumidhar of disputed plot and is in its possession, and defendants have no concerned with this property, but they are illegally trying to interfere in possession of plaintiffs, therefore they be restrained by means of permanent injunction. During pendency of the suit the plaint was amended with averments that in spite of interim injunction the defendants have constructed boundary wall over that portion of plot no. 574, which is detailed in plaint map by letters 'Aa, Ba, Sa, Da', so by mandatory injunction defendants be directed to remove said construction and maintain status quo ante.

(2.) Only defendant no. -1 Deepak had filed written -statement in original suit. Suit against remaining defendants ex -parte. In his w.s. the defendant no. -1 denied the plaint averments and pleaded that he is in possession of such 1­6­4 (1 Bigha, 6 Biswa, & 4 Dhur) land of plot no. 574. The plaintiffs have never been in possession of disputed property nor were defendants ever evicted from this portion of land. No cause of action arose to plaintiffs. Defendants' constructions are present over this disputed property from the time before the institution of suit, and the plaintiffs' suit is liable to be dismissed.

(3.) In replication, the plaintiffs denied the pleadings mentioned in w.s. of defendant no. -1 and pleaded that whole of the disputed property relating to plot no. 574 area 0.041 hectare came in ownership of plaintiffs during the consolidation proceedings. This dispute went up to the High Court, which was decided in favour of plaintiffs. Then defendants preferred an appeal before the Hon'ble Supreme Court, which was dismissed on 18.01.2010. plaintiff was handed over the possession of disputed property, but in his absence during pendency of suit in the year 2002, the defendants had constructed new wall over a portion of it, which is should be demolished.