RAM MURTI Vs. KISHAN CHAND AND ANR

JUDGEMENT

(1.) The plaintiff is in second appeal against the concurrent judgment and decrees passed by the courts below wherein his suit for permanent injunction was dismissed.

(2.) The plaintiff Ram Murti filed the aforesaid suit seeking restraint order qua the defendants from interfering in his alleged actual possession over the shop 'ABCD' and verandah 'EDFG' as depicted in the site plan attached to the suit. The property in question was stated to be situated in Timber Market, Yamuna Nagar. Earlier the property 'ABCDHIJ' was owned by M/s Raj Kumar Parma Nand Bhalla of Yamuna Nagar and out of the aforesaid property a portion shown by letters 'ABCD' was given to the plaintiff in 1968 for consideration and after the said purchase, the plaintiff statedly installed a tea stall thereon which had the opening at point 'X' in the verandah of the remaining property belonging to M/s Raj Kumar Parma Nand Bhalla. It was also alleged that M/s Raj Kumar Parma Nand Bhalla allowed the plaintiff to use the verandah depicted by letters 'EDFG' for the purpose of ingress and egress and also for customary use of the property in question. The plaintiff alleged that since 1968, he had been enjoying the property peacefully without there being any interruption what so ever in the verandah as his passage. Since he had used the verandah for more than 12 years so according to the plaintiff he has acquired the right of easement by way of necessity and also become owner by adverse possession. With these grounds the suit in question was filed which was resisted by the defendants with all defences. The defendants denied the suit property having been owned by M/s Raj Kumar Parma Nand Bhalla or that these persons had given the same to the plaintiff in the year 1968 for consideration. The title of aforesaid persons was questioned as they could not have passed any title to the plaintiff as they had no title qua the property in question. The installation of tea stall and using of verandah by the plaintiff as passage were also specifically denied. It was claimed that the defendants had purchased the property in question from the official receiver through registered sale deed dated 03.12.1980 and earlier to that the property in question belonged to M/s Vaishno Dass Kishori Lal Bhalla, who were declared to be insolvents and their property was situated in Yamuna Nagar Depot was subjected to auction by the official receiver and the same was also having existing construction. Since the property was purchased by the defendants from open auction, therefore, defendants claimed to be in physical possession of the same thereby denying any right whatsoever in favour of the plaintiff.

(3.) Plaintiff also filed replication controverting the allegations made in the written statement. On the basis of pleadings of the parties, following issues were framed:-