KHARAITI RAM Vs. SHAKUNTLA DEVI

JUDGEMENT

(1.) Suit filed by the respondent for possession and mandatory injunction was decreed by Civil Judge (Junior Division), Ludhiana, on 18.8.2006. Aggrieved of the same, the defendants-appellants filed the first appeal, which was dismissed by Additional District Judge, Ludhiana, on 19.3.2009. As such, the present second appeal by them under Section 100 of the Code of Civil Procedure. According to the plaintiff-respondent, she was owner of property measuring 60 sq. yards, comprised in khata No. 576/607, Khasra No.16//23/2 shown in red colour in the site plan, by virtue of sale deed dated 16.9.1991. She applied for demarcation of the suit property. Pursuant thereto, demarcation was conducted by Pritpal Singh, Naib Tehsildar (Retd.) with the help of concerned revenue officials and it was found that the defendants, who were sons and daughters of Smt. Shanti Devi were in illegal occupation of the property measuring 24 ft. x 30 ft., i.e., 80 sq. yards, which included the suit property measuring 60 sq. yards and raised unauthorized construction over the same. The plaintiff had requested the defendants many a time to vacate and hand over the vacant possession of the suit property after removing malba/unauthorized construction but they refused to do so. Hence, the suit by her.

(2.) While contesting the suit, the defendants pleaded that the plaintiff had no right, title or interest in the suit property and, as such, had no locus standi to file the suit. The suit was barred by limitation and also not properly valued for the purposes of Court fee and jurisdiction. The property owned and possessed by the defendants comprised in Khasra No.17//3, khata No. 598/626 and not in Khasra No.16//23/2. The sale deed dated 16.9.1991 set up by the plaintiff was a forged and fabricated document. The property comprised in Khasra No.17//3 was purchased by their mother Smt. Shanti Devi vide sale deed dated 14.7.1975 and after her death, it were the defendants, who were exclusive owners and in possession of the same. The possession of the defendants over the suit property was continuous, hostile, long and without any interruption, which was adverse to all, including the plaintiff, for the last more than 20 years. Their adverse possession had matured into complete title and the plaintiff or her predecessors-in- interest was left with no right, title or interest over the property in dispute. After purchasing the property, the defendants raised huge construction over the same by spending an amount of Rs.2,00,000/-. Remaining averments made by the plaintiff were refuted by the defendants, who then prayed for dismissal of the suit. After hearing learned counsel for the parties and going through the file, the learned trial Court held that it was the plaintiff, who was owner of the suit property and defendants had encroached upon some portion thereof to the extent of 24 ft. x 30 ft. by raising construction over the same. Accordingly, the plaintiff was entitled to its possession. The suit was found to be within time as it was filed on 7.12.1998 whereas cause of action had arisen on 1.12.1998 when the defendants refused to vacate the property in dispute. Moreover, when the plaintiff had approached the Court on the basis of her title, there was no limitation to institute the suit against the illegal encroachers. Accordingly, the suit was decreed with costs for possession of the suit property and the defendants were directed to remove the malba/unauthorized construction raised by them over the suit property and to hand over its vacant possession to the plaintiff within a period of two months. As mentioned above, Additional District Judge, Ludhiana, endorsed the findings recorded by the trial Court and dismissed the appeal filed by the defendants.

(3.) Records of the case were requisitioned. As per reports Ex.PW-3/A dated 7.6.2001 and Ex.P5 dated 22.8.2003, the defendants were found to have encroached upon the suit land measuring 60 yards situated in Khasra No. 16//23/2, which was owned by the plaintiff. The testimonies of PW5 Ashok Kumar, Patwari and PW6 Pawan Kumar, Field Kanugo, who had conducted the demarcation, were not challenged by the defendants that the demarcations, were not conducted as per High Court Rules and Orders and also the directions issued by the Financial Commissioner. Moreover, both of them clearly stated in their testimonies that the demarcation was carried out after fixing pucca points. As a natural corollary thereto, it stands established that the suit land belonging to the plaintiff stood encroached by the defendants, whose land adjoins the same.