RAMESH CHANDER Vs. NAND KISHORE AND OTHERS

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment and decree, dated 28.09.2012, passed by the learned District Judge, Una, Himachal Pradesh, in Civil Appeal No. 79 -XIII of 2009. 'Key facts' necessary for the adjudication of this Regular Second Appeal, are that the respondent -plaintiff, namely Nand Kishore (hereinafter referred to as 'the plaintiff' for the sake of convenience) has filed a suit against the appellant -defendant and proforma respondents No. 2 to 5 (hereinafter referred to as 'the defendants' for the sake of convenience) for possession by removal of superstructure of the premises denoted by letters ABC & DEF as depicted in the attached site plan, being part and parcel of land measuring 3 Kanal 9 Marlas, comprised in Khewat No. 4 min, Khatoni No. 7 min, bearing Khasra Nos. 930, 932, as entered in Missal Hakiat Isteymal for the year 1996 -97 and also for permanent prohibitory injunction restraining the defendants from causing any interference or raising any kind of construction or forcibly dispossessing the plaintiff from the premises denoted by letters JGHI, as shown in the attached site plan, being part and parcel of Khasra No. 923, situated in Mauja Lamlehra, Tehsil and District Una, H.P. and in alternative also suit for possession of second disputed portion, if the defendants succeed in dispossessing the plaintiff from this portion during the pendency of the suit. According to the plaint, the premises denoted by letters ABC and DEF comprised in Khasra Nos. 930 and 932 and land denoted by letters JGHI comprised in Khasra No. 923, are owned and possessed by the plaintiff alongwith other co -sharers, namely Madan Lal, Sheela Devi, Yogesh Chander, Rajesh Chander, Upinder Kumar, Jatinder Kumar, Ravindera Devi and Parveen Kumari. The defendants in the second week of May, 1999, without any right, forcibly encroached upon portions ABC and DEF and raised construction thereon by raising room and boundary wall. According to the plaintiff, the possession of the defendants over portions ABC and DEF is illegal, unauthorized and that of a trespasser. The defendants were threatening to forcibly take possession of portion JGHI comprised in Khasra No. 923. The defendants were requested to desist from their illegal acts and also to hand over the vacant possession of portions ABC and DEF after removal of superstructure, however, they refused to do so.

(2.) THE suit was contested by the defendants. They have disputed the correctness of the site plan filed by the plaintiff. They have denied that portions ABC and DEF are part of Khasra Nos. 930 and 932, i.e. first part of the suit land and that the plaintiff alongwith other co -sharers are owners in possession of the suit land. According to them, at the time of raising construction by defendant No. 1, i.e. Ramesh Chander, in the month of March, 1987, the portion ABCEA forming part of Khasra No. 929, was left vacant and the said portion as shown in site plan filed by defendants, is part of Khasra No. 929, which is owned and possessed by them. The defendants have also denied that site JGHI is part and parcel of Khasra No. 923. According to them, the same is part and parcel of Khasra No. 927, which is owned and possessed by them. According to them, under the garb of ex parte injunction the plaintiff has forcibly occupied the portion ABCEA. The abadi of defendant No. 1 is in existence on the spot since 1987. They have also taken the plea of adverse possession.

(3.) THE learned Civil Judge (Junior Division), Court No. IV, Una, District Una, H.P. has framed the issues on 05.09.2003 and 24.11.2008. Learned trial Court decreed the suit on 29.09.2009, whereby the defendants were directed to hand over the vacant possession of portion ABC, AEL, DEFK and GHIJ, as shown in tatima in demarcation report Ex. DW2/A to the plaintiff.