SOM DUTT Vs. RAM NARAYAN & ANOTHER

JUDGEMENT

(1.) The plaintiff filed a suit before the learned trial Court seeking a decree for vacant possession by demolition of construction raised in the area measuring 0 -00 -16 hectares depicted in the site plan as ABCD embodied in the land comprised in Khata No.40 min, Khatoni No. 59 min, Khasra No. 928, measuring 0 -06 -00 hectares situated in Mohal Thore Upperli, Mauza Gangot, Tehsil Dehra, District Kangra, H.P. The suit came to be decreed by the learned trial Court. The defendant standing aggrieved by the decree rendered against him by the learned trial Court assailed it by preferring an appeal therefrom before the learned Additional District Judge - II, Kangra at Dharamshala, H.P., whereupon the latter Court rendered a judgment in affirmation to the judgment and decree rendered qua the suit land in favour of the plaintiffs/respondents herein by the learned trial Court. Standing aggrieved by the judgment of the learned first Appellate Court, the appellant herein/defendant has instituted before this Court the instant Regular Second Appeal whereby he assails the concurrently recorded findings of facts against him by both the learned Courts below.

(2.) Briefly stated the facts of the case are that the plaintiffs have filed a suit for possession against the defendant alleging therein that the plaintiffs are owners in possession of the land comprised in Khata NO.40 min, Khatauni No.50 min, Khasra No.928, measuring 0 -06 -00 hectares situated in Mohal Thore Upperli, Mauza Gangot, Tehsil Dehra, District Kangra, H.P. (hereinafter referred to as the suit land) and the defendant is stranger to the same. The defendant is onwer of the adjoining land and has encroached upon an area of the suit land measuring 0 -0016 hectares and has raised construction over it as depicted by the letters ABCD in the site plan without the consent of the plaintiff. The plaintiffs obtained demarcation of the suit land which was confirmed by the Ld. A.C. 1st Grade, Dehra on 5.2.2004 and on appeal, the learned Collector, Dehra confirmed the said demarcation on 26.8.2008. No further appeal against the confirmation has been preferred and as such, demarcation has attained the finality. The possession of the defendant over the suit land is unauthorzied without any right, title or interest, as such, the plaintiffs are entitled for the vacant possession of the suit land.

(3.) The defendant contested the suit and filed written statement. The defendant in his written statement has taken the preliminary objections inter alia estoppel, valuation, cause of action etc.. On merits, the defendant denied to have encroached upon the suit land and contended that the land shown by the plaintiffs in the site plan does not belong to them and the same is owned and possessed by the defendant being part and parcel of his land. No demarcation was conducted in the presence of the defendant. The defendant purchased land from Ram Krishan and Hari Krishan vide registered sale deed dated 16.9.1994 and the suit land shown in the site plan by the plaintiffs is part and parcel of the said land purchased by the defendant. The suit land is adjacent to PWD Dhaliara Dada Siba Road and if the suit land is less, the same is under the PWD Road. The defendant denied the remaining averments and a prayer for dismissal of the suit has been made.