PARKASH CHAND Vs. PARMA RAM

JUDGEMENT

(1.) The instant appeal is directed against the impugned judgment of the learned Additional District Judge-III, Kangra at Dharamshala, District Kangra, in Civil Appeal No. 8-B/XIII/12 decided on 16.7.2013, by which impugned judgment rendered by the First Appellate Court, the suit of the plaintiff, for, injunction and possession qua the suit land, as, decreed by the learned trial Court, was affirmed. The defendant has preferred an appeal before this Court. He has assailed the judgment and decree on various grounds as comprised in the grounds of appeal.

(2.) The facts necessary for decision are that the suit land is comprising Khata No. 104, Khatauni No. 157, Khasra No. 202, measuring 0-08-05 hectares situated in Mohal Bhattu Bhurla, Mauza Bhattu, Tehsil Baijnath, District Kangra. The land comprised in the aforesaid Khasra Number is averred to be exclusively owned and possessed by the plaintiff. The defendants are averred to be strangers to the suit land having no right, title or interest over the suit land. The cause of action which prompted the plaintiff respondent to institute the suit against the defendants arose on 19.4.2008 when the defendants entered upon the suit land and started collecting construction material over a part of the suit land. Despite requests made by the plaintiff not to dig the land, the defendants did not pay any heed towards the request of the plaintiff. During the pendency of the suit the defendants have encroached upon Khasra No. 202/1 to the extent of 0-00-16 hectares by digging foundation. The defendants were also found to have encroached upon Khasra No. 202/2, to, the extent of 0-00-36 hectares, upon which the defendant No. 1 had erected store room, stairs, temple, latrine and sehan without any right title or interest. Consequently, a decree for permanent prohibitory injunction restraining the defendants from interfering in the suit land was sought for by the plaintiff-respondent from the trial Court, against the defendant-appellant. Besides a decree for possession of Khasra No. 202/1 measuring 0-00-16 hectares and Khasra No. 202/2 to the extent of 0-00-36 hectares was prayed for.

(3.) The suit was contested by the defendants by filing written statement wherein preliminary objections of maintainability, cause of action estoppel and locus standi was taken. On merits, it was contended that the possession at the spot is same as it was 30 years back. It was further contended that the plaintiff had also filed a civil suit which was decreed for permanent prohibitory injunction and suit for possession was dismissed on 23.9.1998. Therefore, the present plaintiff filed an application under Order 39 which was also dismissed. It was denied by the defendants in the written statement that they have started interfering in the suit land. The suit land was demarcated behind the back of the defendants. The area shown in possession of the defendant No. 1 by the Local Commission is in his possession for the last so many years and temple, stairs, store room, latrine and sehan are in the land of the defendant No. 1, which he has purchased from one Shri Mahant. The demarcation is not proper and therefore, dismissal of the suit is sought.