NIHAL CHAND Vs. MATHURA

JUDGEMENT

(1.) The plaintiff-appellants have filed this appeal against the decree and judgment of the Senior Sub-Judge, Gurdaspur, exercising the enhanced appellate powers, dated January 29, 1971, whereby the decree of the trial Court in favour of the plaintiffs was set aside.

(2.) The plaintiffs filed the present suit for the instance of a permanent injunction against the defendant alleging that they were the owners in possession of the vacant site marked ABCD in the plan, measuring 5 Marlas, forming part of Khasra No. 1712/911 and in the alternative it was prayed that if the defendant was held to be in possession, then decree for possession be passed. In the written statement it was pleaded that the plaintiffs were not the owners in possession of the site in dispute. On the pleading of the parties, the trial court framed the following issues :-

(3.) The trial Court decreed the plaintiff's suit as it came to the conclusion that they were the owners of Khasra Nos. 1712/911, though not in possession of the same. The other issues were decided against the defendant and consequently a decree for possession was passed. The trial Court also appointed a Local Commissioner, to find out whether the site in dispute is a part of Khasra No. 1712/911. He submitted his report Exhibit P.3 and on the basis of that report as well as the Exhibit P.1 'Fard Taqsim' the trial Court decided issue No. 1 in favour of the plaintiffs. In appeal the lower appellate Court has reversed the finding of the trial Court on issue No. 1, with the observation that it is not proved that the site in dispute is situated in a portion owned by the plaintiffs and there is no evidence on the record to show as to who are the other owners of this Khasra numbers, nor the area owned by each of them. As a result thereof, the decree of the trial Court was set aside and the plaintiffs' suit was dismissed. Dissatisfied with the same, the plaintiffs have come up in second appeal in this Court.