BRAHMA NAND Vs. BHRIGU NAND

JUDGEMENT

(1.) Instant regular second appeal filed under Sec. 100 of the CPC, lays challenge to the judgment and decree dtd. 13/12/2007, passed by the learned Additional District Judge, Shimla, camp at Rohroo in CA No. 10-R/13 of 2005, reversing the judgment and decree dtd. 30/3/2005, passed by the learned Civil Judge ( Sr. Div.), Court No.1, Rohroo, District Shimla, in CS No. 223/1 of 2003, whereby suit for permanent prohibitory injunction and mandatory injunction having been filed by the appellant/plaintiff came to be decreed.

(2.) Briefly stated facts of the case as emerge from the record are that plaintiff filed a suit for permanent prohibitory injunction against the defendant averring in the plaint that parties to the lis were previously having one common ancestor late Sh. Angi Ram, who had four sons namely Jagat Ram, Chanan Dev, Mohan Dev and Kedar Nand. Plaintiff averred that Angi Ram and his sons are now no more and parties to the suit are the legal heirs to the aforesaid persons namely Jagat Ram and Kedar Nand. Plaintiff alleged that land comprised in Khata Khatauni No. 139/335 min, khasra No. 1568, measuring 0/0/76 hectares situate in Chak Arhal though has been shown to be owned by the different co-sharers, but in the column of cultivation the gair mumkin house has been shown to be in the exclusive possession of the plaintiff as same fell in the share of late Sh. Jagat Ram, father of the plaintiff in the family partition took place inter-se predecessor-in- interest of the parties way back in December, 2008. Plaintiff claimed that he is coming in peaceful possession of the said house constructed over the suit land. Plaintiff also averred that land bearing khasra No. 1568/2 has been shown to be Makan and Kuthar. Similarly, over land bearing khasra No. 1585/5 disputed Kuthar of the plaintiff has been shown by the Patwari in tatima issued on 25/9/2000. He alleged that right from December, 2008, the Kuthar is shown in the peaceful possession of the late Shri Jagat Ram and thereafter, he is in the possession of the same. Similarly, plaintiff alleged that land bearing khasra No. 1585/3 shown as disputed abadi has been kept joint between the parties towards land bearing Khasra No. 1568 and remaining khasra No. 1585/3 was kept joint of all the four brothers being common ukhal land common abadi, which is jointly being used by the parties to the suit and as such, defendant has no right to change the nature of the land. Plaintiff further claimed that land bearing khasra No. 1585/1 is in exclusive possession of the plaintiff in the shape of gair mumkin courtyard and as such, defendant has no right title and interest over the piece of land. Plaintiff claimed that in the year, 2000, defendant tried to interfere in the suit land and as such, he was compelled to file civil suit, which ultimately ended in compromise and case was withdrawn by the plaintiff after recording the statements of the parties. He alleged that defendant once again for the last 15 days in his absence has started the construction of the land bearing khasra No. 1585.

(3.) Case of the plaintiff came to be resisted by the defendant, who in the written statement alleged that khasra No. 1568 is owned by about 35 persons and share of the plaintiff out of area 0/0/76 comes out to be negligible. Defendant denied that disputed Kuthar is in existence on the Khasra No. 1558/5. He further alleged that tatima issued by the Patwari dtd. 29/11/2003 clearly reveals that Kuthar has been shown in Kharsa No. 1558/8. He alleged that compromise deed dtd. 2/11/2000 is being complied with in its letter and spirit by him and he has not deviated from the same in any manner. He further alleged that half portion of the wooden structure kuthar of the plaintiff is standing in the share of the defendant and as per compromise dtd. 2/11/2000 kuthar is in existence on the spot, however, he reserves his right to take balance portion of the share of the kuthar if the exigency so arises. While stating that he never changed the nature of the suit land, defendant also claimed that he constructed new house in khasra No. 1585/2 adjacent to house in khasra No. 1585/9 and the construction has been carried out by the defendant inside the stone wall of bara and ukhal, khural and some vacant portion has been kept vacant as per the terms of compromise for the use of villagers. He also claimed that remaining portion of the wall of bara shown as khasra No. 1585/4 belongs to the defendant. He denied that kuthar and gair mumkin sehan remained in exclusive possession of the plaintiff. He also denied that he has raised roofing of GE sheets over the land comprised in khasra No. 1585/6 and there is ukhal mustrika as has been shown in spot tatima issued by halqua patwari on the spot.