DHANI RAM Vs. RAMESH KUMAR

JUDGEMENT

(1.) This regular second appeal is directed against the judgement and decree dated 27.6.2011 passed by learned District Judge, Fast Track Court, Chamba, whereby he affirmed the judgement and decree dated 15.1.2010 passed by the learned Civil Judge (Sr. Divn.), Chamba.

(2.) The plaintiff- appellant filed a suit for permanent prohibitory and mandatory injunction and possession that he is owner in possession of land comprised in Khata Khatoni No. 88/150, Khasra No. 863, measuring 1-6 bighas situated in Mohal Mugla, Pargna Panjla Tehsil and District Chamba, H.P, whereas the defendantrespondent No.1 is owner of land comprised in khata Khatoni No. Whether the reporters of the local papers may be allowed to see the Judgment?Yes 505/609, khasra No. 1949/1775, measuring 0-3-8 bighas situated at Mouza Mugla, Tehsil and District Chamba. It is pleaded that khasra No. 1949/1775 is min khasra and having been carved out from khasra No. 856 and that the suit land and the land of defendant- respondent No. 1 abut each other but without getting the boundaries settled, the respondents- defendants No. 1 and 2 started construction work and thereby encroached upon the suit land and though the respondent No. 1 is recorded owner of khasra No. 1949/1775 but the possession is of respondent No. 2. It is also pleaded that defendantsrespondents have forcibly and illegally raised construction of their house by making encroachment in an area measuring 00-00-08 bighas of suit land during the pendency of the suit which is evident from the copy of demarcation report dated 28.2.2005 and, therefore, the appellant- plaintiff is entitled to the possession by demolition of illegal construction. It is also averred that defendants were requested time and again to get the boundaries settled and not to encroach upon the suit land and notice to this effect was served upon respondent No. 2, but respondents continued with construction. It is lastly pleaded that cause of action arose in favour of the plaintiff during the month of March 2002, when the respondents started construction on the suit land and failed to accede to the request.

(3.) The respondent No.2 contested the suit by filing written statement wherein preliminary objections inter-alia that suit is not maintainable, construction was complete in every respect before filing the suit, appellant has no locus standi to file the suit as construction has been raised by respondent No. 2 upon his own land and that the plaintiff is estopped from filing the suit were raised. On merits, it is pleaded that defendant No. 2 purchased the land from respondent No. 1 and thereafter, raised construction of his house over khasra No. 1949/1775 which was completed in the year 2001. It is denied that any encroachment has been made in the suit land. It is further pleaded that demarcation had not been carried out legally as per instructions laid down in H.P. Land Record Manual. It is denied that any notice was sent to the respondent No. 2 and any cause of action had accrued. Replication to the written statement controverting the contents thereof and reasserting those made in the plaint was filed. On the pleadings of the parties, the following issues were framed by the trial court on 9.10.2006:-