VILAS BABU THANGE Vs. NICHOLAS PEREIRA

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment and decree passed by the learned 6th Additional District Judge, Thane in Civil Appeal No. 293 of 1984. The facts relevant for decision of this Second Appeal are that Respondents/original plaintiff nos.1 to 4 have filed Regular Civil Suit No.404 of 1976 against the present Appellants who were defendants in the said suit and claim of declaration as well as possession of the suit property was sought for in the said suit. The plaintiffs contention in the suit was that, they are joint owners of the agricultural land bearing Survey No. 112 Hissa no.3 ad measuring about 1 Acre and 11-1/2 gunthas situated at Panchapakhadi, Thane and the defendant no.2 is sister-in-law of the plaintiff no.1. The plaintiff's also stated in the said suit that the suit land is ancestral land and the defendant no.1 was the agricultural labour, working in the field of the plaintiffs and also was doing domestic work. The plaintiffs have further stated in the plaint that plaintiffs had constructed a hut ad measuring about 25' x 30' and used that hut for keeping agricultural equipments. The plaintiffs have further alleged in the suit that the defendants had extended the hut from time to time and at the time of filing of the suit the defendant no.1 had started construction of hut, however, the plaintiffs have warned not to carry out further construction in the suit property. The plaintiffs have also stated in the suit that the defendants have no right to carry out any construction or extend the construction of the suit hut. The plaintiffs have further stated in the suit that in fact defendant no.2 was not available for signing the plaint and hence she is added as defendant no.2. Therefore, no relief is claimed against the said defendant no.2. The plaintiffs have ultimately claimed relief for declaration to the effect that they are owners of the suit land and suit hut and have also claimed possession of the suit property after removal of the extended portion of the hut.

(2.) THE defendant no.1 after service, entered appearance and filed written statement at Exh.10 with the contention that the said house in land Survey No.112/3 i.e. in the suit property in his possession from his birth as a owner for more than 12 years. In short, the defendant has set up a plea of acquisition of title by adverse possession to the suit property.

(3.) THE original plaintiffs had filed Regular Civil Appeal No. 283 of 1984 before the 6th Additional District Judge, Thane. The learned 6th Additional District Judge, Thane after hearing the parties, has allowed Regular Civil Appeal No.293 of 1984 by quashing and setting aside the judgment and decree passed by the learned trial Court. The learned First Appellate Court declared that the plaintiffs are owners of the suit land i.e. land Survey No. 112 Hissa no. 3 and further directed the defendant nos 1 to 5 to hand over vacant possession of the land underneath the suit hut, ad measuring 25' x 30' as well as of the land underneath the extended portion of the suit hut which is to the south side of the suit hut, ad measuring 29' x 10'-3" and the land below the structure raised with the help of four bamboos with plastic cover, to the plaintiffs within 2 months from the order. The defendants, their agents and servants are also permanently restrained from erecting any further structure on the suit land or inducting tenants in the suit land and the suit hut by virtue of judgment and decree passed by the first appellate Court on 20-12-1986.