NIKKO DEVI Vs. RAVI DUTT

JUDGEMENT

(1.) THIS Regular Second Appeal has been preferred by the plaintiffs -appellants against the judgment and decree dated 02.08.2001 passed by learned District Judge, Una, in Civil Appeal No. 71 of 1997, whereby, he has affirmed the judgment and decree dated 04.04.1997 passed by the learned Sub Judge Ist Class, Court No. II, Amb, District Una, in Case No. 144/1992. Succinctly, the facts of the case as pleaded in the suit are that the plaintiffs were owners -in -possession of the suit land comprised in Khasra No. 746, as entered in the copy of jamabandi for the year 1987 -88, situated in village Marwari, Tehsil Amb, District Una. Its area was 0 -01 -84 hectares, out of which the predecessor -in -interest of the plaintiffs -appellants sold land along with the super -structure vide sale deed dated 03.05.1988 to the defendants/respondents. The super -structure comprised of shops and rooms measuring 62'.3" x 21'.6". The remaining portion of such khasra number was shown by letters ABCD in the site plan and was not sold by the predecessor -in -interest of the plaintiffs -appellants. It is pleaded that the defendants -respondents were clever persons and they procured an agreement dated 11.07.1989 alleged to have been executed by the predecessor -in -interest of the plaintiffs -appellants i.e. Gian Chand. This agreement was the result of fraud and misrepresentation. It is averred that the suit land was still in the ownership and possession of the plaintiffs -appellants, but the defendants -respondents were threatening to take over forcible possession of the same and raise construction thereupon. Therefore, the suit was filed for permanent prohibitory injunction to restrain the defendants -respondents from raising any construction over the suit land in Khasra No. 746 and, in the alternate, a decree for possession by way of demolition of the construction or super -structure, if raised during the pendency of the suit or after the institution of the suit, was prayed for.

(2.) THE defendants -respondents filed written statement and raised preliminary objection to the effect that the suit was not maintainable in the present form and objections regarding estoppel, cause of action and no enforceable right qua the suit land, were also raised. On merits, it is averred that Shri Gian Chand, predecessor -in -interest, of the plaintiffs -appellants had agreed vide agreement dated 11.07.1989 to sell the suit land measuring 2 marlas to the defendants -respondents for a consideration of Rs.500/ -. The consideration was paid and accordingly, they were put in possession on the same date. It is further averred that the defendants -respondents have raised construction of latrine etc. on the suit land and that the plaintiffs -appellants are not in possession of the suit land. It was further pleaded that the defendants -respondents had requested the plaintiffs -appellants to accompany them for registration of the sale deed, but they had been postponing the same on one pretext or the other.

(3.) THE learned trial Court on 29.09.1994 framed the following issues: -