BIMLA AND OTHERS Vs. SAROJ RANI

JUDGEMENT

(1.) Both the learned Courts below concurrently rendered a decree vis.a.vis the plaintiff qua mandatory injunction whereupon the defendants were mandated to hand over possession of licensed premises borne on Khasra Nos. 264, 257 and 258 situated in Chak Khalinda, Pergana Matiana, Tehsil Theog, District Shimla, H.P. besides both the learned Courts below rendered qua the plaintiff a decree of permanent prohibitory injunction for restraining the defendants from raising any construction or carrying any construction on the existing construction. The defendants standing aggrieved by the concurrently recorded verdicts of both the Courts below preferred herebefore the instant appeal whereby they concert to seek their reversal.

(2.) The facts necessary for rendering a decision in the instant appeal are that the plaintiff is the owner in poosession of Khasra Nos. 264, 257 and 258 situated in Chak Kalinda to the extent of 3/4th share alongwith Kamlesh who is owner of 1/4th share. The defendants were co-villagers, who were in need of accommodation for their use. The plaintiff gave one room over Khasra No. 258 and three rooms over Khasra No. 257 to defendants as licensee. The defendants are in possession of four rooms as licensee. The plaintiff demanded the possession from the defendants but the defendants threatened to demolish the same and refused to handover the possession. The defendants have collected the construction material. Hence, it was prayed that defendants be restrained from raising the construction and be directed to handover the possession.

(3.) The suit is opposed by filing written statement, taking preliminary objections regarding the lack of maintainability, suit being barred for non joinder of necessary party and for misjoinder of cause of action. It was specifically denied that plaintiff is the owner in possession of the land bearing Khasra No. 257 and 258. It was asserted that the father of the defendant No.1 constructed one single storeyed house over the land bearing Khasra No. 257 showing his hostile animus over the same. The possession of defendants No. 1, 3 and 4 is open, visible and hostile to the true owner. The defendants No. 1, 3 and 4 have become the owners of the land bearing Khasra No. 257 by way of adverse possession and the revenue entries are wrong. The defendant Bimla constructed three rooms in the year 1980 over Khasra No. 258. The possession of the defendants No.2 is continuous since 1980 and she has become the owner by way of adverse possession. The possession of the defendants was also found by the settlement staff. The plaintiff came to know about the revenue entries and wants to take advantage of the same. Therefore, a false suit has been filed.