SITARA Vs. HEMCHAND

JUDGEMENT

(1.) This appeal is directed by the appellants/ defendants under section 100 of Civil Procedure Code being aggrieved by the judgment dated 27-3-2000 passed by 5th Additional District Judge, Sagar Camp at Khurai District Sagar in Civil Regular Appeal No. 46-A/1999, affirming the judgment and decree dated 31-10-1998 passed by II Civil Judge Class-II Khurai in Civil Original Suit No. 207-A/98 decreeing the suit of the respondents filed for possession and perpetual injunction against them.

(2.) The facts necessary to adjudicate this appeal in short are that the respondents herein filed the suit for possession and perpetual injunction against the appellants stating that one Munnalal Modi, the father of respondent No. 1 and his other son Pannalal purchased with possession 14,400 sq. ft. land bearing Survey No. 51/1 comprising with six plots 40 x 60 sq. ft. each situated at Khurai, vide registered sale deeds dated 2-4-1946 from its earlier owner Gopilal Jhumaklal and Laxman Prasad. Thereafter in the year 1951 on carrying out the family partition by Munna Lal between his family members the aforesaid six plots came in the share of Munnalal and respondent No. 1 Hemchand. Out of them in the year 1960 said Munnalal and respondent No. 1 had sold two plots to Prem Narayan Mishra and Pramod Kumar respectively who had constructed their houses on the same. Subsequent to such sell the respondent No. 1 and Munnalal each one remained owner of two plots. On 22-6-1960 by executing a Will said Munnalal bequeathed his two plots in favour of respondent No. 2 Abhay Kumar the son of respondent No. 1, on which after death of Munnalal, respondent No. 2 became owner of his two plots. Earlier the same were bounded with fencing but due to efflux of time the same was damaged on which in the year 1988 new fencing was carried out. In the month of May, 1992 the appellants constructed a Godown on some part of these plots. The same is shown with red colour in the annexed map with the plaint. They also constructed foundation on some part of such plots, shown with the blue colour in the aforesaid map. Subsequent to it again on 16-6-1992 respondents were digging the foundation on the western side open land of such plots. On making the report to the police a proceeding under section 145 of Criminal Procedure Code was initiated, on culminating the same against the respondents a revision was filed in which the interim stay was granted. In pendency of such revision the appellants have constructed another Godown on the part of the plots shown with the blue colour in the aforesaid map. The appellants also threatened to carry out the construction on other open land of such plots, on which the impugned suit for possession of the land with a further prayer for issuing perpetual injunction restraining the appellants from any interference in their rights and possession of the abovementioned property was filed.

(3.) In the written statements of the appellants by denying the averments of the plaint. In addition it is stated that the land on which the alleged construction was carried out by them is not a part of the land purchased by the respondents. The respondents were never remained in possession of such disputed land. As per further averments the alleged construction of the house and the foundation was not carried out by the respondents in May 1992. It is also stated that they are coming in peaceful possession of such land as owner since last 20 years without any obstruction of the respondents. In the year 1975 such land was purchased by them in an oral transaction from one Chintra Singh. With these pleadings the prayer for dismissal of the suit was made.