KAUSHALYA DEVI Vs. KALASO DEVI

JUDGEMENT

(1.) The appellants/plaintiffs (hereafter referred to as the plaintiffs) have preferred the present appeal against the judgment and decree dated 22 -12 -1993 passed by the learned District Judge, Hamirpur whereby their appeal against the judgment and decree dated 1 -9 -1993 dismissing their suit has been dismissed and the judgment and decree of the trial court has been affirmed.

(2.) In brief, the case of the plaintiffs is that they are the owners in possession of shops built on 5 Marlas of land, a portion of land comprising Khata Khatauni Nos. 53/58 and 59, Khasra No. 80 min and 80 min measuring 5 kanals and 5 Marlas, situate in Tika Chathiar, Mauza Balduhak, Tehsil Nadaun, District Hamirpur, H.P. It is averred that Ramesh Chand, predecessor -in -interest of the parties, purchased the said 5 Marlas of land construction of shops. The original purchaser, however, died on 5.2.1987 before completion of the foundation work of the shops. The construction work thereafter was done by the father of plaintiff No. 1 at his own expenses because the plaintiffs had no means to carry on the construction. After the death of Ramesh Chand, 1/3rd share of the aforesaid 5 Marlas of land was mutated in the name of respondent/defendant (hereafter referred to as the defendants) but she never came to possess any portion of the land nor spent any money on the construction of the shops in question. However, she started interfering with the possession of the plaintiffs over the shops in suit, therefore, the plaintiffs instituted a suit for declaration that they are the owners in possession of the shops in suit and also prayed for permanent prohibitory injunction restraining the defendant from interfering with the shops intuit in any manner or alienate the same in the name of third person. The defendant contested the suit and in the written statement took the preliminary objections that the suit was not maintainable, the plaintiffs had got no cause of action, the suit was bad for nonjoinder and misjoinder of necessary parties, the suit was not properly valued for the purposes of court fee and jurisdiction, the plaintiffs were estopped from filing the suit by their act and conduct, the plaintiffs had no locus standi to file the present suit, the suit was barred by time as also under Section 10 of the Code of Civil Procedure. On merits, the claim of the plaintiffs as made out in the plaint was denied and it was claimed that the shops in suit were constructed by deceased Ramesh Chand and after his death, being his mother, the defendant came in possession of the suit land as well as the shops in suit. It has been denied that the construction work of the shops was completed after the death of Ramesh Chand. The plaintiffs filed replication wherein the grounds of defence, as taken in the written statement, were denied.

(3.) On the pleadings of the parties, the learned trial Judge framed >he following issues : "1. Whether the plaintiffs are entitled for decree of declaration and permanent injunction as prayed for? OPP.