YOGENDER PAL VERMA Vs. O.P. VIJ

JUDGEMENT

(1.) THE instant appeal is directed against the judgment and decree, rendered on 17.08.2002, in Civil Appeal No. 12 -S/13 of 2002, by the learned District Judge, Solan, H.P., whereby, the latter partly allowed the appeal preferred before it by the plaintiff -respondent against the judgment and decree of 23.11.2001 rendered by the trial Court in Civil Suit No. 581/1 of 1994 whereby the suit of the plaintiff was dismissed.

(2.) THE plaintiff -respondent had instituted a suit for permanent injunction against the defendant -appellant for restraining the defendant from interfering in the land and built up structure comprised in Khata/Khatauni No. 161/320 Khasra Nos. 262, 264, 267, 268, 269 kitas 5 measuring 211 sq. meters and Khata Khatauni No. 162/327 Khasra No. 263 measuring 195 sq. meters, situated in Mauja Thodo Solan, Tehsil and District Solan H.P. Besides, a further relief was reared in the plaint of the defendant being restrained from causing any type of damage to the suit property by changing its nature in any manner whatsoever either by himself or through his agents, servants, family members. The suit of the plaintiff was dismissed by the learned trial Court. The plaintiff was aggrieved by the judgment and decree of the learned trial Court, hence, instituted an appeal before the learned District Judge. The learned District Judge partly allowed the appeal preferred before him by the plaintiff -respondent inasmuch as it accorded in his favour a decree of permanent prohibitory injunction qua Khasra No. 263 only. Hence, in the operative part of the impugned judgment and decree of the learned Appellate Court the defendant -appellant was restrained from causing any type of damage whatsoever either by himself or through his agents, servants, family members, to the premises in possession of the plaintiff -tenant comprised in Khasra No. 263, situated in Mauza Thodo, Solan, H.P., till the plaintiff stands evicted there -from in accordance with law.

(3.) THE defendant -appellant contested the suit and filed written statement, wherein he took preliminary objection that the plaintiff is in possession of the land comprised in Khata No. 162, Khatauni No. 327 Khasra No. 263 measuring 195 square meters. The defendant contended that he is the owner in possession of the land comprised in Khasra No. 263/1 measuring 48 square meters and has nothing to do with the land comprised in Khasra No. 263/2 and the plaintiff has misrepresented the facts and has intentionally suppressed the factum of partition and of the status of the suit property as existing on the date of filing of the suit. It has been contended that Rajan Sharma is not the co -sharer with the defendant nor the plaintiff is a tenant qua Khasra No. 263/1 and the plaintiff has no right, title and interest in the land comprised in Khasra No. 263/1 whereupon he is raising construction. It has been contended that the defendant purchased the land comprised in Khasra Nos. 244, 245, 246, 265 and part of Khasra No. 263 and after the purchase legal and valid partition of the land which was jointly recorded in the name of the defendant and other co -sharers has taken place and after the partition the defendant is in exclusive possession of land comprised in Khasra No. 263/1 and it has been denied that the defendant is making any interference in the possession of the plaintiff as alleged in the para. It was denied that the plaintiff is in possession of any portion of land comprised in Khasra No. 263/1 measuring 48 square meters. It was also contended that he has no right, title or interest over the same and there is no question of dispossession of the plaintiff from the same and it has been denied that the defendant is doing any illegal act. It has been pleaded that the plaintiff has no right, title or interest over the land owned and possessed by the defendant so there is no question of any loss and damage to him on account of construction being raised by the defendant and the defendant is raising construction on his own land. However, it was contended that the plaintiff intends to harass the defendant with mala fide intention and there is no question of any loss or injury to the plaintiff as alleged and there is no structure of Rajan Sharma over the land owned by the defendant and it is denied that there is any balance of convenience in favour of the plaintiff and against the defendant and no loss or injury is likely to be caused to the plaintiff, if the suit is dismissed and on the contrary defendant will be deprived of user of his own land and no cause of action arose in favour of the plaintiff and against the defendant and a prayer for dismissal of the suit was sought for from the learned trial Court.