BHARAT SINGH Vs. KUNWAR SINGH

JUDGEMENT

(1.) The defendant in a suit for declaration of title and issuance of a mandatory injunction who succeeded fully from the Trial Court, but lost partially in the plaintiff's appeal before the lower Appellate Court has come up in second appeal.

(2.) The suit property consists of two parts. The plaint alleges that the property shown by letters (also in red colour) is plaintiffs' property, a part of their residential house, while the property shown by letters is a passage meant for approach to their house. In the month of August 1967, the defendant committed trespass over the passage and started raising construction over it. This led to initiation of proceedings before the Revenue authorities as also under the Criminal Law. However, the defendant did not desist. As the defendant denied the title and right of the plaintiffs, the plaintiffs sued for a declaration that the property was owned and possessed by them and also for a mandatory injunction against the defendant requiring removal of obstruction created by him in their way. The defendant denied in his written statement all the material averments made in the plaint and also took a plea that the suit was barred by time.

(3.) The Trial Court decided all the issues against the plaintiffs and hence dismissed the suit. The lower Appellate Court in an appeal preferred by the plaintiffs, has confirmed the judgment and decree of the Trial Court in so far as it refused mandatory injunction touching the property but in so far as the property, is concerned it held that the property does belong to the plaintiffs and hence granted a declaration to that effect. The plaintiffs have not chose to prefer a further appeal nor a cross-objection and hence to the extent to which their suit has been dismissed, the decree of the courts below has achieved a finality. The sole question surviving for consideration is that whether the lower Appellate Court was justified in granting a declaration of title to the plaintiffs touching the property.