UNION OF INDIA Vs. GORKHIA

JUDGEMENT

(1.) This Regular Second Appeal has been preferred by the defendants/appellants against the judgments and decrees passed by the learned Courts below, whereby the suit of the plaintiff/respondent for permanent prohibitory injunction alongwith mandatory injunction was decreed by the learned trial Court and the said decree affirmed by the learned first Appellate Court.

(2.) The facts in brief are that the respondent/plaintiff filed a suit claiming therein that he is owner of the land comprised in Khasra No. 30, Khata/Khatauni No. 11/13 min, measuring 3-9 bighas situated in mauza Devthal, Pargana Bharoli, Tehsil and District Solan (H.P.) as per jamabandi for the year 1996-97, whereas defendants were strangers having no right, title and interest who through defendants No. 2 and 3 have forcibly encroached upon the suit land to the extent of 2-14 bighas depicted by Khasra No. 30/1 as per tatima prepared by patwari halqua. The grievance of the plaintiff was that defendants had constructed a pump house, one two room and one three room set unauthoriseldy and illegally without the consent of the plaintiff or his predecessor. Despite repeated requests officials of the defendants did not vacate the land instead they were threatening to encroach upon remaining vacant land by raising construction of latrine in left out portion of Khasra No. 30 depicted as Khasra No. 30/2. It is also alleged that neither plaintiff nor his predecessor-in-interest had ever consented for raising any construction and thus, construction was required to be demolished and in the alternative plaintiff also contended that if court comes to the conclusion that construction and encroachment in Khasra No. 30/1 is not to be disturbed, then a decree for mandatory injunction be passed against defendants for making acquisition of land as per the Land Acquisition Act by paying market value of the land to the plaintiff. Since, defendants have no legal right to interfere on the remaining portion of Khasra No. 30 denoted with Khasra No. 30/2 and have no right to change its nature in any manner by making further construction to which decree for permanent prohibitory injunction has been prayed. Cause of action arose to the plaintiff on 24-8-2000 when defendants started encroaching upon Khasra No. 30 further interfered by another part of suit land denoted by Khasra No. 30/2. Accordingly, plaintiff prayed for grant of decree for possession by demolishing construction raised upon Khasra No. 30/1 and in alternative a decree for mandatory injunction directing defendants to immediately initiate acquisition proceedings and to acquire the suit land and grant compensation and decree for permanent injunction restraining defendants from raising further construction upon Khasra No. 30/2 as shown in tatima.

(3.) Defendants resisted the suit, filed joint written statement and raised preliminary objection of maintainability, cause of action, suit being bad for non-joinder of necessary parties, suit having not been properly valued, suit being time barred and that the plaintiff has not come to the court with clean hands. On merits, it was contended that defendants were in possession of suit land upon which they had constructed a pump house more than 25 years back and the land was in possession of the Government of India. It has been emphatically denied that officials of defendants No. 2 and 3 had forcibly encroached upon any portion of suit land rather Government of India was owner-in-possession of suit land. Cause of action was denied. It was further submitted that old Khasra No. 42, now 30/1 and Khasra Nos. 39, 40, 49, now Khasra No. 30 was not being interfered with by defendants and therefore question of irreparable loss to the plaintiff did not arise. Accordingly, suit was prayed to be dismissed.