ANAND ALIAS CHHOTELAL Vs. MAHAVIR PRASAD SHUKLA

JUDGEMENT

(1.) This appeal under Section 100 of the Code of Civil Procedure has been filed challenging the judgment and decree dated 20-9-1994, passed in Civil App'eaWo. 52-A/1994, by the First Additional District Judge, Rewa, arising out of judgment and decree dated 30-7-1994, passed in Civil Suit No. 445-A/1980. by the Second Civil Judge Class II, Rewa, and has been admitted on the following substantial questions of law :-

(2.) Brief facts leading to filing of this appeal are that respondents/plaintiffs filed a suit in the Court of Second Civil Judge Class II, Rewa, claiming that it be declared that they are the owner of the part of the land of Plot Nos. 2682 and 2683 situated at Mohalla Katra. Tehsil Huzur, District Rewa, and by removing the wall constructed by the appellant/defendant, they be delivered back the possession of the said land with damages of Rs. 2,000/-. It was categorically contended by the respondents/plaintiffs that they are the owner of the plot over which a house No. 16/209 was constructed by their father, who has expired. On the western side of the plot of the respondents/plaintiffs Plot No. 2684 is situated which was earlier owned by one Jamuna Awadhiya and which has been purchased by the appellant/defendant by registered sale-deed, dated 2-12-1981. A temporary house was constructed on the said plot, which has been demolished and a new house is constructed by the appellant/defendant over the paid plot. On the boundary of the said plot, a wall of stone was constructed over which further construction has been made and the house is constructed by the appellant/defendant exceeding the plot area purchased by him. In the plaint, description of the plot of the respondents/plaintiffs was given and in Paragraph 2 of the plaint, it was categorically stated that the boundaries of the plots owned by the respondents/plaintiffs are marked as 'A', 'B' 'C & 'D' in the plaint map which was annexed with the plaint. It was categorically said that the said plaint map is the part of the plaint. The disputed plot was shown with red colour and described by words 'Aa' 'Tha', 'Ga', 'Va' 'La', 'Ra' and 'Ya' in Hindi Devnagiri. A further declaration was made in the plaint that the said area will be called as disputed land. In Paragraph 4 of the plaint, the respondents/plaintiffs have categorically said that there was open land left between house constructed over the plots of the respondents/plaintiffs and the temporary house constructed on Plot No. 2684, which was on the plot of the respondents/plaintiffs and the said land was left open with an object to use the same as conservancy for draining out the rain water and cleaning of the latrine.

(3.) It was the categorical allegation made by the respondents/plaintiffs in the plaint that while making construction over the Plot No. 2684, purchased by the appellant/defendant, the open area left by the respondents/plaintiffs was encroached upon and a house was constructed by erecting a wall just with the wall of the house of the respondents/plaintiffs. It was said that such a construction was made with a deliberate intention to grab the land of the respondents/plaintiffs and, therefore, the respondents/plaintiffs were entitled to the decree of declaration of their rights over the disputed land and possession of the said land.