SHRIKANT Vs. USHA DEVI

JUDGEMENT

(1.) The present appeal has been preferred against the judgments and decrees passed by the Courts below decreeing the suit filed by the plaintiff-respondent for possession, permanent injunction as well as the mandatory injunction.

(2.) The brief facts relevant to the present lis are that the plaintiffrespondent filed the present suit for possession of portion having area measuring 15.87 sq. yds out of plot measuring 6 marlas being 6/19 share of Khasra No.42, Killa No.3/2/3 (0-19) situated at Village Bhapra, Tehsil Samalkha, District Panipat and for recovery of use and occupation of the said plot portion @ Rs.4,000.00 per month from July 2012 to the date of actual physical possession of the said portion. It was averred in the plaint that the plaintiff-respondent was the owner of the suit property vide sale deed bearing Vasika No.1714 dtd. 12/7/2012 registered in the office of the Sub Registrar, Samalkha. After purchasing the suit plot, the plaintiff respondent got measurement of the plot done at the spot and it was found that the defendant-appellant had encroached upon a portion measuring 15.87 sq. yds. marked by letters ABCD out of the suit property. The plaintiffrespondent requested the defendant-appellant to handover vacant possession, however, the defendant-appellant lingered on the issue on one pretext or the other. In the month of February 2017, the defendant-appellant started proclaiming that the plaintiff-respondent had not got done the demarcation of the suit property and he had no faith on the claim of the plaintiffrespondent without demarcation of the suit plot. Accordingly, the plaintiffrespondent and her husband got demarcation of the suit plot done from the office of Naib Tehsildar-cum-Assistant Collector 2nd Grade, Samalkha on 12/3/2017 according to which the defendant-appellant was found to have encroached upon the portion of Khasra No.42//3/2/3 measuring 15.87 sq. yds. i.e. the suit property. Hence, the present suit. The suit was contested by the defendant-appellant on the ground that the plaintiff-respondent had not approached the Court with clean hands and had concealed the material facts from the Court. Preliminary objections were raised that the mother of the defendant-appellant had purchased land measuring 7 marlas i.e. 210 sq. yds which is 7/101 share out of 5 kanals 1 marla comprised in Khata No.99/118, Killa No.42/9/1 (5-1) situated at Bhapra, District Panipat vide sale deed bearing Vasika No.1099 dtd. 11/10/1990 and after the death of his mother, mutation of inheritance was sanctioned vide mutation No.1984 dtd. 27/1/2000 in his favour. It was further averred that he had raised construction over the same and was residing there with his family members without interruption. The pleas of the suit not being properly valued, the Court not having jurisdiction and the suit being bad for mis-joinder and nonjoinder of necessary parties, were also raised.

(3.) On the basis of the pleadings of the parties, the following issues were framed :