RAJ KUMAR Vs. BHOLA NATH

JUDGEMENT

(1.) THE appellant is the defendant, who is aggrieved by the judgment and decree dated 17.12.2013 passed by learned District Judge, Una, H.P. in Civil Appeal No. 56 -XIII/2011 whereby he affirmed the judgment and decree dated 30.7.2011 passed by learned Civil Judge (Senior Division), Court No. 1, Una, District Una, H.P. in Civil Suit No. 26/2005 and dismissed the counter claim filed by the appellant/defendant.

(2.) THE facts, in brief, are that the respondents/plaintiffs filed a suit for possession and mandatory injunction against the appellant/defendant and his father (who is proforma respondent in this appeal) in respect of the land measuring 18 marlas comprising Khewat No. 841 min, Khatauni No. 1092 min, Khasra No. 1357 as entered in jamabandi for the year 1997 -98 situated in Mohal Bathu, Sub Tehsil, Haroli, District Una (hereinafter referred to as the suit land). It was averred by the plaintiffs that the land in suit is owned and possessed by the plaintiffs and towards east of this land there is land of the defendants in Khasra No. 1344 over which they have raised construction/renovation, katcha construction with pucca construction. It was also alleged that the defendants have encroached upon the land marked with letters ABCD being part of khasra No. 1357 by raising construction thereon about six years ago. The plaintiffs raised objection at the time of raising aforesaid construction but the defendants assured that the plaintiff would be compensated with the land of similar nature. It was further alleged that while renovating his abadi from katcha to pucca about one and half years ago, the defendants have kept ventilators and door shown by letter D towards the land of the plaintiffs measuring 1 kanal 19 marlas, comprising khasra No. 1345 for which he has no right to do so. The said act of the defendants is highly illegal and uncalled for. The possession of the defendants over the suit land is illegal and that of trespasser. The plaintiffs requested the defendants to hand over the vacant possession of the said land denoted by letters ABCD after closing the ventilators and door but the defendants apparently appear to be adamant to accede to the request of the plaintiffs and had finally refused, hence the suit and prayed that a decree for possession of the super structure of the site denoted by letters ABCD shown in red circumscription, be passed in favour of the plaintiffs and against the defendants and for mandatory injunction directing the defendants to close the ventilators and door as shown by letter 'D' in the site plan, kept on the northern wall of the plaintiffs abadi touching the land of the plaintiff measuring 1 Kanal 19 marlas comprising khewat No. 841 min, Khatauni No. 1092 min, khasra No. 1345 as per jamabandi for the year 1997 -98.

(3.) THE appellant/defendant No. 1 also filed counter claim against the plaintiffs with the averments that the plaintiffs under the garb of present suit have been raising illegal and unwarranted threats to obstruct and close the only passage leading to the main road as shown with letters ABCDEF and with yellow ink in the site plan annexed for which they have no any legal right, title and interest to say so. It was further claimed that if the land denoted by letters ABCD in the site plan is found to be part of Khasra No. 1357, then the possession of the defendants has ripened into ownership being adverse by afflux of time. The defendants requested the plaintiffs not to interfere in the existing usages of passage but the plaintiffs have refused to accede to the request of the defendants two days back from filing of the suit. The defendants had filed the counter claim and prayed that a decree for declaration be passed in favour of the defendants and against the plaintiffs to the effect that defendant No. 1 is the owner in possession of the land shown in the plaintiffs' site plan as acquired by prescription with consequential relief of permanent injunction restraining the plaintiffs from interfering in any way for the user and utilization of the land as common passage shown with yellow colour denoted with letters ABCDEFA.