ATRI Vs. CHANDER

JUDGEMENT

(1.) This Regular Second Appeal is directed against judgments and decrees dated 29.7.2008 and 21.11.2008 passed respectively by the Additional Civil Judge (Senior Division), Nuh (hereinafter described as `the trial Court') and the Additional District Judge, Nuh (referred to hereinafter as `the first appellate Court'). It is accompanied by C.M.No.14624-CII of 2009 in which a prayer under Section 5 of the Limitation Act for condonation of 298 days' delay in its filing, has been made. The appellant herein is the plaintiff, who had filed a suit for permanent injunction alleging that she is co-owner of the land which has been described in the plaint out of which some portion was sold by various sale deeds through Shri Khursheed, holder of her power of attorney; that the said power of attorney was cancelled on 11.1.2005 after the sales had been effected; that the defendant-respondent was a stranger to the land in question and was threatening to occupy the northern-western portion of Rect.No.22, Killa No.16/1 to the extent of 1 kanal illegally and unauthorizedly; that he had laid foundation up to the D.P.C. Level and, therefore, he should be injuncted from carrying on his activities on the portion of the land to which he has no right,title or interest. The respondent, on appearance, pleaded that the appellant had sold out her entire holdings to different vendees by various sale deeds and that he had raised construction on the land bearing Rect.No.23, Killa No.27 (0-10) which was purchased by Shri Ghisdu, his grand-father from one Tikam Ram vide registered sale deed dated 29.5.1973; that the construction was being raised over the said land after getting the site plan sanctioned from Municipal Committee, Nuh and that the appellant had no concern with the suit property on which he was raising construction. On the pleadings of the parties, the following issues were framed:-

(2.) After appraisal of entire evidence on record, the trial Court dismissed the suit of the appellant and in appeal, the first appellate Court affirmed the findings recorded by it. It was held by both the Courts below that the appellant had failed to establish the unauthorised occupation of the respondent on killa no.16/1 as was pleaded by her. However, both the Courts noticed on the basis of the demarcation which was carried out during the trial, that encroachment on 29-1/2 square yards by the respondent stood indicated, but finding no prayer or pleadings to that effect, declined to interfere.

(3.) Aggrieved by the aforesaid findings of the Courts below, the appellant has filed this appeal.