HARJI Vs. MOOL CHAND

JUDGEMENT

(1.) This regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Faridabad dated 17.2.1998 vide which the learned first Appellate Court affirmed the finding of facts and the view taken in law by the learned trial Court in the judgment and decree dated 30.11.1996.

(2.) For determination of the legal questions arising for consideration before this Court in the present appeal reference to necessary facts and pertinent evidence is inevitable. Mool Chand and Suresh Kumar plaintiffs filed a suit for permanent, prohibitory and mandatory injunction on the averments that ancestor of the plaintiff, namely, Shri Todar was mortgagee with possession of the suit land became owner on account of prescription of the property measuring 54 feet x 48 feet situated inside abadi area of village Chandawali, Tehsil Ballabgarh, District Faridabad. The property was mortgaged in the year 1897 and was in a dilapidated condition. The mortgage deed in favour of the ancestor of the plaintiffs was created on 24.2.1897. One Heera Singh was the mortgagor. It was further averred that the defendants constructed a house towards the western side of the property in dispute. This house was constructed with an intention of encroach upon the land, of which the plaintiffs were owners in possession, over which the defendants had no right. The plaintiffs requested the defendants not to encroach upon the land or to take forcible possession thereof resulting in filing of the present suit and during the pendency of the suit the portion shown in red colour in the site plan ABCD, defendants had taken forcible possession by encroaching upon the suit land. In these circumstances suit for permanent prohibitory injunction as well as mandatory injunction requiring the defendants to hand over the vacant possession of the said portion by demolishing the construction over the said land was filed before the learned trial Court.

(3.) The suit was contested by the defendants. The defendants raised preliminary objections in regard to maintainability of the suit, non-joinder of the necessary parties as well as locus standi, to file the suit. However, on merits it was stated that no mortgage deed was executed in favour of the ancestor of the plaintiffs in regard to the property in dispute and even if there was some mortgage deed executed, it was a forged document. The defendants claimed to be owners in possession of the property shown in red colour marked by alphabets ABCD in the site plan Ex. DW2/A. They claimed that they were using the said property for tethering their animals etc. The defendants took a definite plea that Panchayat of the respectables of the village was convened and the decision of the Panchayat which gave the measurements of the plot of the plaintiffs in question as 79 feet in length and 38 feet in width was accepted by the parties who signed and thumb marked the same. As such, it was stated that the suit was not maintainable.