LAKHSMI DUTT Vs. CHIEF ADMINISTRATOR

JUDGEMENT

(1.) THIS regular second appeal is directed against the judgment and decree passed by the learned 1st Appellate Court dated 6. 3. 1997 vide which the learned 1st Appellate Court dismissed the appeal of the appellants while leaving the parties to bear their' own costs. In order to appreciate the contentions raised by the learned counsel appearing for the parties in this appeal, it is necessary that bare minimum facts giving rise to the present appeal are noticed at the very outset:

(2.) PLAINTIFF Laxmi Dutt and others had filed the suit alleging that they are owners of shamlat patti Nathan and in possession of the suit land bearing Khewat No. 139, Khatoni No. 221, Khasra No. 1219 (1 bigha 4 biswas) situated in the revenue estate of Mauza Faridabad. The suit land was being used allegedly by them for storing cow-dung cakes, fodder and tethering cattle. Certain temporary structures had been raised on this land. The defendants, Faridabad Complex Administration and its employees had threatened the plaintiff on 9. 3. 1987 to remove these structures, goods and articles lying on the said land and also to demolish the structures raised thereupon. However, the plaintiffs were able to resist demolition on that date. Staff of the defendants had gone back giving clear threat that they would demolish the same and develop a park in the suit land. The action of the defendants is stated to be malafide and without authority of law by the plaintiffs. On these facts, the suit for mandatory injunction was instituted by the plaintiffs against the defendants. While contesting the suit, defendants No. 1 and 2 filed joint written statement and raised various preliminary objections as to very maintainability of the suit and locus-standi of the plaintiffs to file the suit. The very factum of possession of the plaintiffs and that they were storing cow-dung cakes, fodder and tethering cattle in the land in question is specifically denied. According to the defendants, the suit land was lying vacant and was in possession of the Administration and they were planning to develop a park and green belt for the benefit of the general public. Other defendants filed independent written statements praying for dismissal of the suit. It is averred that khasra No. 1219 was not in existence at the spot and the suit was not maintainable. It was further averred that Laxmi Dutt, one of the plaintiff, had filed earlier Suit No. 540 of 1985, which was decided on 15. 9. 1988 against defendant No. 3. This suit was dismissed. Laxmi Dutt had filed an appeal against the said judgment, which was also dismissed on 10. 5. 1989 and as such, the present suit is an abuse of process of law. Learned trial Court on various pleadings of the parties had framed the following is sues vide its order dated 20. 11. 1987 :