MOHINDER SINGH Vs. GURDASS RAM

JUDGEMENT

(1.) Instant Regular Second Appeal filed under Sec. 100 of the Code of Civil Procedure, lays challenge to judgment dtd. 6/9/2008, passed by learned Additional District Judge-I, Una, District Una, Himachal Pradesh in Civil Appeal No.79 of 2005, affirming the judgment and decree dtd. 31/8/2005, passed by learned Civil Judge (Senior Division) Una, District Una, Himachal Pradesh in Civil Suit No.95 of 2000, whereby suit for possession having been filed by the respondents (hereinafter referred to as the plaintiffs), came to be partly decreed.

(2.) For having bird's eye view, certain facts, which are relevant for adjudication of the case are that the plaintiff filed a suit for possession by removal of structure denoted by letters A B C D E F G H shown in red colour in the site plan, standing on the land measuring 0/0/47 hectares, Khewat No.60min, Khatauni Nos.79, 83 Khasra Nos. 705 and 707 to 711 as per jamabandi for the year 1995-96 situate in Village Sohari, Tehsil Bangana, District Una, District Una, Himachal Pradesh (hereinafter referred to as the suit land). In the aforesaid suit, plaintiffs claimed that suit land is owned and possessed by them, but defendant being head strong person raised construction over part of the suit land under the pretext that land belongs to him and he is in illegal possession of vacant and constructed portion without their consent. Plaintiffs averred in the plaint that prior to filing of the suit at hand, they had filed a suit for injunction against the defendant qua the land comprised in Khasra No.4403/2234, measuring 1 kanal 7 marlas titled as Gurdas Ram versus Mohinder Singh being civil suit No.32/88, wherein defendant by way of written statement had admitted that Khasra No.4402/2234 belongs to him and thereupon he had made Khurlies cups on 5 marlas, which are of temporary nature and he has nothing to do with the remaining land in Khasra No.4403/2234. Aforesaid civil suit having been filed by the plaintiff was dismissed on 17/5/1993, as the plaintiffs were found to be out of possession. Though, plaintiff laid challenge to aforesaid judgment and decree dtd. 17/5/1993, but before same could be decided on its own merits, plaintiffs were permitted to withdraw the suit with liberty to file afresh in respect of the same subject matter subject to cost of Rs.250.00.Plaintiffs claimed that since possession of the defendant over the suit land is illegal and he is trespasser, they are entitled to possession after demolition of the structure. Since defendant failed to accede to the request of the plaintiffs to handover the vacant possession of the suit land, they were compelled to approach the competent court of law by way of civil suit.

(3.) Defendant by way of written statement refuted the aforesaid claim of the plaintiffs and claimed before the court below that the earlier part of the suit land was owned by the plaintiffs but w.e.f.1970, he is coming in possession over such part of the suit land and since his possession is open, continuous and hostile to the knowledge of the plaintiffs, he has perfected his title and has become owner in possession of such part of the suit land, upon which he has constructed 'Khurlies' and cattle-shed. Defendant also claimed that in previous suit the plaintiffs in their statement had admitted his possession over the part of the present suit land for the last 15 years. In nutshell, defendant claimed himself to have become owner in possession of part of the suit land by way of adverse possession.