KUDRAT NOOR Vs. MANGILAL

JUDGEMENT

(1.) The appellants/original plaintiffs have preferred this appeal under Section 100 of the CPC being aggrieved by the judgment and decree dated 19.9.2013 passed by the Second Additional District Judge, Ashta, District Sehore in regular Civil Appeal No.9-A/2012 reversing the judgment and decree dated 19.12.2006 passed by the Civil Judge Class-I, Ashta, District Sehore in Civil Suit No.32-A/2003, whereby the plaintiffsâ suit was partially decreed and it was ordered to the defendants for removing their encroachment on 30 decimals land of Survey No.21 and the respondents No.1 to 3 were perpetually restrained from interfering in plaintiffsâ agricultural work over the disputed land of way.

(2.) The facts giving rise to this appeal in short are that the present appellants herein filed the above mentioned suit contending that each of them is Bhumiswami of different agricultural lands of village Bhagwanpura, Tehsil Ashta, District Sehore. Ashta town is situated in the western side adjacent to their agricultural lands. On the land bearing Survey No.21 of same village, a Government way exists, which was being used by the plaintiffs from the time of their ancestors to take their oxen-carts, cattle and to transport their crops from their agricultural fields. The defendants No.1 to 3 had constructed a house over 0.30 acre part of the above mentioned land of Government path and thus were creating obstruction in using the way by the plaintiffs. In a demarcation proceeding in compliance to order of the Naib Tehsildar, Ashta, the Superintendent of Land Records after spot inspection on 21.5.1998 also found encroachment of the defendants over the land of the path and prepared a panchnama and reported the matter to the Revenue Court. Thus, by plaint, reliefs of mandatory injunction to order about removal of the constructed house on land of the Government path and for prohibitory injunction in relation to prevent the defendants from doing agricultural work on the path to the plaintiffs, were prayed.

(3.) The defendants No.1 to 3 filed joint W.S. before the trial Court and denied the pleadings of the plaint. According to the pleadings of the above defendants, some co-owners of the agricultural lands owned by the plaintiffs had not been made party to the suit. It was admitted that in revenue record, the disputed survey no.21 is recorded as Government path but before more than last 40 years, from the lands of defendants, Ashta-Kannod Damar Road has been built, which is being used by all the parties to the suit and other villagers for going to their agricultural lands and Bhagwanpura. After construction of damar road, survey No.21 is not being used as way, thus at present no any way exists on the land of survey no.21. The plaintiffs themselves have constructed a well upon the land of survey no.21. The defendants have not made any encroachment in any manner. On the road which is being used as a way since more than last 40 years, the defendants have not made construction of house. On the spot, pakka dammar road is available to plaintiffs and other agriculturists of village Bhagwanpura. The plaintiffs are not having any right to file the suit for removal of alleged encroachment over the Government land. The lands of defendants are situated in eastern direction of the land of survey no.21. The plaintiffsâ suit is not legally sustainable. Thus, the dismissal of the suit was prayed.