RAMESH CHAND SHARMA Vs. PURSHOTTAM KAMRIYA & AOTHER

JUDGEMENT

(1.) The instance appeal under Section 100 of Civil Procedure Code is directed against the concurrent judgment and decree dated 2.12.2011 rendered in Civil Appeal No. 29A/2011 affirming the judgment and decree dated 20.5.2011 passed in Civil Suit No.62A/09.

(2.) Facts relevant for the disposal of this Appeal are that appellants -plaintiffs filed a suit for declaration of title and permanent injunction in respect of open land ad-measuring 96.4 x 70 sq. ft towards east of the house situated in Kishanganj Bohdapur, District Gwalior. The aforesaid open land is hereinafter referred the suit property.

(3.) The suit is primarily based on the facts that the father of the appellant No.1 and husband of appellant No.2, Ram Gopal Sharma had purchased the suit land from its owner Madari son of Kapoor Baksh on 07.12.1926 and possession was handed over to him. Thereafter, on 20.10.1962, he had obtained permission of building construction from Gram Panchayat Shankarpur. However, due to paucity of fund Ram Gopal Sharma could not construct the house during his life time. He had executed the Will in favour of his son appellant No.1 on 16.7.1975. Ram Gopal Sharma had died on 4.7.1976. On such premise, appellant No.1 claimed to be exclusive owner and possession of the suit land. He also averred that in Municipal Corporation, Gwalior his name was also recorded in property tax register. Another set of facts averred in the plaint are that one Bhagwan Singh Kushwah was inducted as tenant in the house. However, one Nadariya and his wife Kalavati in collusion with Bhagwan Singh Kushwah claimed him to be their tenant. Under the circumstances appellant No.2 filed a civil suit No. 22A/1996 before the IInd Civil Judge Class-2 and during the pendency of the suit there was an agreement dated 30.4.1998 among four namely appellant No.2, Nadariya, his wife Kalavati and Bhagwan Singh Kushwah wherein the ownership and possession of appellant No.2 on the house was accepted and accordingly decree was obtained. However, as defendant Bhagwan Singh Kushwah attempted to encroach upon the suit land, hence, the instant suit for declaration and permanent injunction in respect of suit land was filed by the appellants. It is pertinent to mention at this juncture that the suit as aforesaid was in respect of house and not the suit land.