JAGTAR SINGH Vs. SHINGARA SINGH AND ANOTHER

JUDGEMENT

(1.) This is defendant's regular second appeal against the judgment dated 4.4.2008 passed by the learned Additional District Judge, Ludhiana, whereby the appellate court while reversing the judgment dated 3.8.2006 passed by the trial court, decreed the suit of the plaintiffs. This suit filed by the plaintiff under Order 1 Rule 8 CPC against the defendant is regarding the property situated within the red line of village Kalsian. There is Aramgah situated in Turf Massandan (Patti Massandan) used for the common purpose. It has been pleaded that the suit property being "gair mumkin aramgah gair jari" by nature has also a room and a boundary wall which is located for the last 35 years. Since the inhabitants of the village Massandan including the plaintiffs had been using the property for the common purpose for holding meetings and resting, therefore, the defendant has no right to encroach upon the same. The house of the defendant abuts the property in dispute. Now the property is in dilapidated condition. On being threatened to encroach upon the said property, the plaintiffs had to file the suit.

(2.) On being notified, the defendant appeared and contested the cause. Besides some preliminary objections, it was also submitted by the defendant that the property was not left for the common purpose or common use by the inhabitants of Turf Massandan of village Kalsian, but the same has been sold by its owners namely Jagdev Singh and many others to him for a consideration of Rs. 33,750/- and Rs. 8500/- vide agreements dated 15.9.1997 and 17.9.1997 respectively. He had been delivered the possession of the same. Thus, he has become owner in possession of the same. In any case, he being in exclusive possession of the suit property is entitled to seek protection under Section 53-A of the Transfer of Property Act.

(3.) From the pleadings of the parties, the trial court framed the following issues:-