KAPOOR CHAND Vs. RAM LOK AND ANOTHER

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment and decree dated 3.1.2012 rendered by the learned Additional District Judge, Solan in Civil Appeal No. 5 -S/13 of 2010. "Key facts" necessary for the adjudication of this Regular Second Appeal are that respondents -plaintiffs (hereinafter referred to as the "plaintiffs" for convenience sake) filed a suit for mandatory injunction, possession and permanent prohibitory injunction with respect to land comprised in Khata/Khatauni No. 38min/39 min, Khasra No. 318 measuring 9 biswas, Gair Mumkin Abadi, situate in Mauza Kambalwa, Pargana Doon, Tehsil Kasauli, District Solan, H.P. (hereinafter referred to as the 'suit land'). According to the plaintiffs, they are owners in possession of the suit land and the appellant -defendant (hereinafter referred to as the "defendant" for convenience sake) is stranger. Plaintiff No. 1, namely, Ram Lok applied to Assistant Collector 2nd Grade, Kasauli for demarcation in case No. 36/8 of 2002 on 22.4.2002. The Assistant Collector 2nd Grade, Kasauli deputed Field Kanungo to demarcate the suit land. Defendant alongwith others was summoned by the Field Kanungo. He demarcated the suit land and also that of the adjoining owners with the help of Patwari Halqua. The Field Kanungo found that the defendant has encroached upon 3 biswas of land by raising construction. Naksha Tafawat of the encroached land was prepared by the revenue official of Khasra No. 318/1. The demarcation report was finalized by the Assistant Collector 2nd Grade on 3.5.2003. Plaintiffs requested the defendant to remove the encroachment from the land by demolition of house and to hand over its vacant possession, but to no avail. In these circumstances, plaintiff has filed the suit for injunction, possession and permanent prohibitory injunction against the defendant.

(2.) SUIT was contested by the defendant. According to the defendant, the old house which was kucha has been reconstructed by him in the month of January, 1981. No objection was raised when the house was reconstructed. His possession over the land beneath his house to the extent of three biswas was claimed to be open, hostile and to the knowledge of the plaintiffs and their predecessor -in -interest. According to defendant, he has become owner by way of adverse possession. It was also stated that no demarcation was conducted on the spot in his presence nor any notice was served upon him. The defendant has also filed counter -claim stating therein that he has constructed the house over the suit land around 80 years ago. It was previously Kucha and it was reconstructed by him in the month of January, 1981. The possession of the defendant being open and hostile since January, 1981 has ripened into the ownership by afflux of time.

(3.) LEARNED Civil Judge (Senior Division) framed issues on 20.9.2005. He decreed the suit on 15.1.2010. Defendant preferred an appeal against the judgment and decree dated 15.1.2010 before the Additional District Judge, Solan. He dismissed the same. It is in these circumstances, the present Regular Second Appeal has been filed.