NAND LAL Vs. MITTER DEV

JUDGEMENT

(1.) Instant regular second appeal filed under Section 100 of CPC is directed against the judgment and decree dated 6.11.2006, passed by the learned District Judge, Mandi, HP, in Civil Appeal No. 16 of 2005, affirming the judgment and decree dated 29.12.2004, passed by learned Civil Judge (Jr. Div.) Chachiot at Gohar, District Mandi, HP, in Civil Suit No. 20/2004 (1995), whereby suit of the plaintiff-respondents (hereinafter referred to as the 'plaintiff') was partly decreed for vacant possession of land measuring 0-0-8 bighas of the suit land with direction to the defendant-appellant (hereinafter referred to as the 'defendant') to give vacant possession of the land described herein above of the suit land to the plaintiff by removing the construction. However, learned trial Court did not hold plaintiff entitled to the decree of permanent prohibitory injunction.

(2.) Briefly stated facts as emerged from the record are that the plaintiff filed suit for permanent prohibitory injunction and also for vacant possession against the defendant to the effect that the defendant should not raise an construction over the suit land and also not to remove protection wall and block the drain/nallah situated adjacent to protection wall and further not to block the flow of water either by himself or through his agents or family members etc. Plaintiff also prayed for decree for vacant possession in his favour and against the defendant directing him to remove encroachment made by him over the suit land. Similarly, plaintiff also prayed that defendant be restrained from interfering in any manner whatsoever, in the suit land either by himself or through his agents or family members etc by passing a decree for permanent prohibitory injunction in his favour and against the defendant. Plaintiff averred that land comprised in khata khatauni No. 92/127 khasra No. 248, measuring 0-4-1 bigha situated in mauja Chail/51, Teshil Chahiot, District HP, is owned and possessed by the plaintiff. He also stated that he constructed his residential house over the suit land and remaining part of the suit land is vacant and is being used as Sehan and kitchen garden etc. Plaintiff further averred that adjoining to the suit land, there is khasra No. 247 measuring 0 18 bigha and the defendant is having 280/1120 shares in the said land. Plaintiff further contended in the plaint that prior to consolidation, old khasra numbers of khasra No. 247 were 298 and 299, which were owned by Smt. Promila Kumari and these khasra numbers were given in exchange by her to the plaintiff in lieu of the khasra No. 572/296, which was converted into khasra No. 246 during the consolidation proceedings. He further prayed that plaintiff has raised a protection wall over old khasra No. 298 and there is a drain by the side of the wall since long. He further averred that the defendant started construction over khasra No. 247 by raising new building and later on the said construction was extended by the defendant towards khasra No. 248 i.e. suit land and also towards the drain. Plaintiff further alleged that the defendant forcefully removed the protection wall which was constructed by him for the protection of his residential house. It is also averred in the plaint that defendant has also encroached upon the portion of khasra No.248 by raising building thereon in the month of January, 1991. Plaintiff alleged that defendant despite several requests made by him, failed to obtain demarcation before raising construction. Cause of action arose to the plaintiff in the month of January, 1991, when defendant made encroachment and thereafter on 13.8.1995 when the defendant started digging portion of the suit land and blocked the drain.

(3.) Defendant by way of detailed written statement refuted the claim put forth by the plaintiff by taking preliminary objection of valuation, maintainability and non-joinder of parties. On merits, defendant while refuting the averments contained in the plaint stated that over part of khasra No. 241/1 measuring 0-0-8 bigha, there existed a house, which was previously in possession of S/sh. Rajinder Pal, Tek Chand, Hem Raj and Devender, Son of Ludermani. Defendant also stated that the said house was double storeyed and was over the land comprised in khasra No. 241/1 measuring 0-0-8 bigha i.e in the land comprised in khasra Nos. 297/298, 299, 300 and 303 kitas 5 measuring 0- 5-19 bighas situated in mauja Chail. Defendant further claimed that co-owners vide registered sale deed dated 22.12.1978 sold the residential house along with kitchen to the defendant for sale consideration of Rs. 10,000/- and the possession was also delivered to him of part of khasra No. 248/1 measuring 0-0-8 bigha and thereafter, he renovated the existing structure over khasrsa No. 241/1 and has raised construction of three storeyed building. Defendant further claimed that his possession over khasra No 248/1 measuring 0-0-8 bigha is from the time of previous owners which is continuous, open, peaceful and is in hostile possession to the knowledge of the plaintiff and the defendant has acquired the title in the month of December, 1991, by way of adverse possession. The defendant also denied other averments made in the plaint and alleged that Promila Kumari has got no right title or interest in the suit land and he is owner in possession of khasra No. 247 and two shops of the defendant are over khasra No.247.