OM PARKASH Vs. ROHTASH

JUDGEMENT

(1.) Petitioner has preferred this revision petition against the order dated 04.08.2018 passed by the Addl. District Judge, Gurugram, vide which order dated 23.01.2018 passed by the trial Court was set aside and the application under order 39 Rules 1 and 2 CPC was dismissed.

(2.) Admittedly parties are co-sharers in the suit land. Plaintiff filed a suit for permanent injunction against the respondents on the ground that plaintiff is co-sharer in possession of 1/4th share of land measuring approximately 375 sq. yards shown in red and green colour in the site plan attached with the plaint. The aforesaid land is comprised in Khewat No.264/258, Khatoni No.307, Khasra No.318 (0 Bigha 10 Biswa 0 Biswansi) situated in revenue estate of village Islampur, Tehsil and District Gurgaon (now Gurugram) as per jamabandi for the year 2005-06. Plaintiff further alleged that the aforesaid land (though Khasra No.307 has been wrongly shown in place of Khasra No.318) was partitioned amongst the co- sharers orally and all the co-sharers are in possession of their respective shares. Plot of the plaintiff is adjacent to the plot of the defendants on the northern side of the plot and plot of the plaintiff is earmarked by letters 'EFRGHQ' in green and red colour in the site plan. Plaintiff further alleged that the defendants are adamant to encroach upon the portion shown in red colour of the land of the plaintiff by digging foundation and by collecting building material on the spot. With this background, the suit was filed seeking permanent injunction against the defendants/co-sharers. Along with the suit, an application under Order 39 Rules 1 and 2 read with Section 151 CPC was filed.

(3.) The written statement filed by the defendants was allowed to be amended. In the amended written statement, the defendants contested the suit of the plaintiff by pleading following facts in para Nos.2 and 3:-