RULDA RAM Vs. BARKAT ALI

JUDGEMENT

(1.) THE plaintiffs being unsuccessful in both the courts below have approached this Court by way of present regular second appeal against the judgment and decree dated 13.12.1983 passed by the lower appellate Court affirming that of the trial Court dated 7.8.1982 vide which the suit of the plaintiffs for mandatory injunction, was dismissed.

(2.) ADUMBRATED , the facts necessary for the disposal of this appeal are that the plaintiffs are Harijans (Ad-dharmi) and inhabitants of village Sheikhupur, Tehsil and District Nawanshahr. The land in question is in exclusive possession and enjoyment of the plaintiffs for the last 60 years and they have been using the same for their religious functions, community gathering and other common purposes. It was pleaded that the defendants have forcibly constructed their kothas on a part of land of khasra No. 90 shown in red colour in the site plan without any right, title or interest, depriving the plaintiffs and the other Harijans of the village from using the land in dispute for the aforesaid purposes. Despite repeated requests of the plaintiffs, the defendants refused to remove their kothas which gave rise to the plaintiff to file a suit for mandatory injunction directing the defendants to remove their kothas constructed by them on part of the suit land, forcibly. Along with the plaint, an application under Order 1 Rule 8 of the Code of Civil Procedure (for short 'the Code') was also filed seeking permission of the court to file suit in a representative capacity on behalf of 64 other persons.

(3.) FROM the pleadings of the parties, the following issues were framed by the trial Court : "1. Whether the suit in the present form is maintainable ? OPP 2. Whether the site in dispute is a common site of the plaintiffs and other villagers as alleged and as been used as such as alleged in Para No. 2 of the plaint ? OPP 3. Whether the plaintiffs are entitled to the injunction as prayed for ? OPD 4. Whether the suit is not within time ? OPD