SUNDER SINGH Vs. BRIJ LAL

JUDGEMENT

(1.) This Regular Second Appeal under Section 100 C.P.C. has been filed by the appellant/plaintiff against the judgment and decree of the Court of learned District Judge, Sirmaur District at Nahan, dated 16.7.1998, vide which he set aside the judgment and decree passed by the Court of learned Sub Judge, Rajgarh, dated 23.6.1997, decreeing the suit of the appellant for declaration.

(2.) Briefly stated, the facts of the case are that a suit for declaration was filed by the appellant, hereinafter also referred to as the plaintiff, as against the respondents, hereinafter also referred to as defendants No. 1 and 2. It was alleged by the plaintiff that he was owner in possession of the suit land comprised in Khasra No. 2288/624 measuring 0-7 Bigha. He alleged that out of this land, he gifted 2 Biswas of land in favour of defendant No. 1 in the year 1987-88 and that land is still lying vacant on the spot and other 5 Biswas land is in possession of the plaintiff. It was alleged that the plaintiff constructed his residential house over the suit land about 12 years back and the house is being possessed by the plaintiff, which is on the remaining 5 Biswas of land owned by him. It was further alleged that defendant No. 2 on 29.9.1993 claimed that he has purchased house from defendant No. 1 and threatened the plaintiff to oust him from the lawful possession over the house, to which he has no right. It was further alleged that the defendant No. 1 taking undue advantage of the illiteracy of the plaintiff and in collusion with revenue staff got the residential house of plaintiff entered in his name, whereas it was constructed by the plaintiff about 12 years back and is being occupied by him. Hence, the suit for declaration and permanent injunction filed by the plaintiff.

(3.) Defendants took up preliminary objections in regard to limitation, estoppel and locus-standi. On merits, it was pleaded that initially the land in question was measuring 0-7 Bigha and out of this land, the plaintiff vide gift deed dated 24.9.1982 gifted away 0-2 Bigha of land to defendant No. 1. Thereafter, defendant No. 1 constructed one room on the land for running a shop, which was rented out by defendant No. 1 to defendant No. 2 vide agreement dated 26.7.1985. Thus, it was pleaded that the shop and the land is possessed by the defendant as owner and as such, the plaintiff has no right, title or interest in the suit land. Hence, the suit is liable to be dismissed.