GYAN PARKASH Vs. BHATI DEVI

JUDGEMENT

(1.) THE instant appeal, at the hands of contesting defendants No. 1 to 3, is directed against the judgment of reversal dated 6.12.2006 passed by the learned Additional District Judge, Rewari, whereby first appeal of the plaintiffs was allowed setting aside the judgment and decree dated 19.4.2004, passed by the learned trial Court in a suit for declaration and possession. Brief facts of the case are that initially the suit was filed by plaintiff Mahabir Singh, alleging that the predecessor -in -interest of plaintiff and proforma defendants No. 4 to 8, namely late Shri Ram Chander was owner in possession of the suit land measuring 1K -4M as Dholidar. After the death of Shri Ram Chander, plaintiff as well as proforma defendants No. 4 to 8 became owner of the suit land by operation of law. Ram Kanwar, father of defendants No. 1 to 3, being a shrewd and influential person, in collusion with officers of the revenue department got his name incorporated in the revenue record as Gair Marusi on the suit land, whereas he never remained as Gair Marusi under late Shri Ram Chander. It was further pleaded case of the plaintiffs that taking undue benefit of the illegal entries in the revenue record, defendants No. 1 to 3 constructed a chhappar and boundary wall on the suit land, about three years before the institution of the present suit because the suit land was lying in the shape of vacant plot. Since defendants No. 1 to 3 brought the construction material at the site, for raising further construction in the suit land without having any right, title or interest therein being the trespassers, plaintiff was forced to file the present suit. During the pendency of the suit, Mahabir Singh died and his LRs were brought on record.

(2.) DEFENDANTS were put to notice. Contesting defendants No. 1 to 3 appeared and filed their joint written statement taking more than one preliminary objections, qua maintainability, estoppel and limitation controverting the averments taken by the plaintiffs. It was specifically stated that prior to the year 1971, Ram Chander father of the plaintiff was in possession of the suit land. However, on 24.5.1971 Ram Chander handed over the possession of the suit land in favour of Ram Kanwar -predecessor -in -interest of defendant Nos. 1 to 3 for consideration of Rs. 900/ - by way of executing a writing in that regard. Ram Kanwar -predecessor -in -interest of defendants No. 1 to 3 remained in possession of the suit land till his death in May 1996. It was further pleaded case of the contesting defendants No. 1 to 3 that after taking over the possession of the suit land in year 1971, Ram Kanwar constructed two chhappars, planted several trees and erected kachha wall. Thereafter, in the year 1983 late Shri Ram Kanwar raised a pucca boundary wall up to five feet in height around the suit land. In the year 1985, the said boundary wall was further raised up to 8 -9 feet. In January 1992 defendants raised construction of two pucca rooms, one kitchen and a tin shed on the suit land. Raising of construction before three years of filing the present suit was denied. Late Shri Ram Chander father of plaintiff, never challenged the revenue entries during his life time. Dismissal of the suit land was prayed for. On completion of pleadings of the parties, following issues were framed by the learned trial Court: -

(3.) WHETHER the suit of the plaintiff is not maintainable in the present from? OPD