KAMLA BAI Vs. BABULAL

JUDGEMENT

(1.) The present appeal is filed under Order 41 Rule 23 of CPC against the order dtd. 31/3/2006 passed by I ADJ, Ujjain in Civil Appeal No.31A/2005 whereby the case has been remanded back to the trial court.

(2.) Facts of the case are that plaintiff/respondent filed a suit for declaration and permanent injunction stating that the plaintiff had a house in village Lekoda, district Ujjain. Adjacent to the hosue of the plaintiff, the house of the defendant-appellant No.1 is situated. On the right side of the plaintiff, the house of it open land (Bada) of the ownership of the plaintiff is situated. Size of that land is 45 x 22 ft. This disputed land has been shown in the map in red line. Boundaries of the land is described in para No.1 of the plaint. It is further pleaded that appellant/defendant Nos.1,2 and 3 tried to forcibly take possession of the land and the defendant/appellant Nos.4,5 and 6 opened a door and on raising objection by the plaintiff the door was closed but they are challenging the title of the plaintiff, hence they were made parties in the suit.

(3.) The plaintiff claimed that he has got this land from his father which he had purchased 40-45 years ago from Babulal Lohar in Rs.10.00 and since then the plaintiff is in possession of the suit land. Earlier the plaintiff using that land for throwing garbage of the house. Lateron on father of the plaintiff was growing vegetables on it. Plaintiff got permission from Panchayat to construct a house and the defendants raised objection and the fact was admitted that the land was of the possession of the plaintiff but on lapse of time price of the land has been rised, therefore, the defendants are trying to show that the land in dispute is of their ownership and attempting to use the same. The defendants are trying to take possession of the land on which proceedings under Sec. 145 Cr.P.C. and case No. 1488/89 was registered. The court did not decide the dispute and dismissed the case. Taking advantage of the decision of the court the defendants are trying to take possession of the land in dispute and using the same, therefore the suit was filed