DES RAJ Vs. KARTAR CHAND

JUDGEMENT

(1.) This is plaintiffs' second appeal challenging the judgments and decrees of the Courts below whereby their suit for permanent injunction restraining the defendant-respondents from interfering in the use of the passage in dispute and also restraining them from raising any type of construction in the said passage was dismissed by the trial Court and the said decree was affirmed in appeal by the lower appellate Court. As per the averments made in the suit, the plot in dispute which comprised in Khasra No. 492/4(0-4) shown as Gair Mumkin Abadi and described in the site plan as 'ABCD' was originally owned by Achhar Singh from whom it devolved upon Munshi Ram, father of the plaintiffs. The plaintiffs have inherited the estate of Munshi Ram and thus were in possession of the plot as aforesaid. There is a passage connecting the said plot which has been depicted as 'KLBM' in the site plan and is comprised in Khasra No. 492/6(0-1) as per the revenue record. According to the further averments, this is the only passage leading to the plot of the plaintiffs as the said passage connects the plot of the plaintiffs with the main metalled road. The plot of the defendants is situated towards western side of the plot owned by the plaintiffs and the passage shown by letters 'KLBM' is surrounded by plot of the defendants towards the northern and southern sides as depicted in the site plan. It is alleged that the defendants have no right, title or interest in the plot shown as 'ABCD' but they have illegally occupied the plot of the plaintiffs and now the plaintiffs are entitled to claim the possession thereof. It is also alleged that the defendants are not allowing the plaintiffs to use the passage shown by letters 'KLBM' and they were also threatening to encroach upon the passage in question. Hence, the suit.

(2.) Upon notice, the defendants filed written statement raising various preliminary objections. On merits, it was denied that the property marked as 'ABCD' bears Khasra No. 492(0-4) as alleged or the said Achhar was owner of the property shown in the site plan. It was denied that Achhar left behind Munshi Ram, his son. It was further denied that the plaintiffs were grandsons of Achhar. It was alleged that the plaintiffs do not relate to Achhar nor have they got any right, title or interest in the property in dispute. Existence of passage marked as 'KLBM' was also denied. It was alleged that there was a pond towards northern side of the suit property and the entry, if any, showing passage was absolutely baseless and imaginary. It was contended that the plaintiffs were neither owners nor in possession over any plot. It was alleged that the defendants were in possession of the property marked as 'ABCD' shown in the plaint, annexed with the written statement, where they have made constructions and planted various kind of trees. Possession of the defendants over the said property was continuous, uninterrupted and for more than 50 years. The property towards southern side of the suit property has been shown to be the house of Parkash Chand, whereas there is no house of Parkash Chand towards southern side of the property in dispute. It was further denied that there was any passage towards northern side shown as 'KLBM', rather it was contended that towards northern side there is a pond. It was alleged that the defendants were in possession of the disputed property in their individual capacity and that the plaintiffs have nothing to do with the property in possession of the defendants. Thus, dismissal of the suit was prayed for.

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