KISHAN Vs. MUKANDI

JUDGEMENT

(1.) Bhunda filed a suit for permanent injunction against Mukandi to restrain him from interfering with the possession of plot marked ABCD as shown in the plan Ex. P.1, measuring 21' x 18' situated in village Khandra, Tehsil Panipat, District Karnal, details of which are mentioned in the plaint, because the defendants had collected bricks to raise construction on that plot. During the pendency of the suit, Bhunda died and was represented by his three sons. They claimed themselves to be owners of the plot for the last more than 20 years. The trial Court granted a temporary injunction to the plaintiffs on 4th July, 1980, On 2nd August, 1980, the plaintiffs filed an application before the trial Court saying that they had come to know that a week ago the defendants had raised construction on a part of the property in dispute illegally and without any right.

(2.) The suit was contested by the defendants and they pleaded that they had raised the construction on the property in dispute on 21st June, 1980, and, therefore, the suit was not maintainable in the form it was filed, besides raising other contentions that they were the owner-in-possession. The trial Court decreed the suit after recording a finding that the defendants had raised the construction during the pendency of the suit. However, on defendants appeal, the matter was remanded to the trial Court after granting permission to the plaintiffs to amend the plaint to seek the relief of mandatory injunction. When the matter came back to the trial Court and the matter was tried in view of the amended pleadings, the trial Court, vide judgment and decree dated 29th May, 1984, decreed the suit of the plaintiffs and directed the defendants to remove the construction of the Kotha which they had raised during the pendency of the suit, and hand over vacant possession of the same to the plaintiffs. It was found on Issue No. 1 that the plaintiffs were owners-in-possession and had been dispossessed by the defendants after the filing of the suit and that the defendants had failed to prove if they raised the construction by 21st June, 1980. The defendants went up in appeal and the learned District Judge by judgment and decree dated 8th February, 1985, upheld the aforesaid findings of the trial Court after giving good reasons but, in para 21 of the judgment, came to the conclusion that since the suit in the present form was not maintainable and the plaintiffs did not have locus standi to file a suit for mandatory injunction, the appeal was allowed and the suit was dismissed. This is plaintiffs Second Appeal in which the defendants have filed the cross-objections.

(3.) After hearing the learned counsel for the parties I am of the view that whereas the cross-objections have no merit, the appeal has to succeed.