SHASHI KUMAR Vs. SUNKA RAM

JUDGEMENT

(1.) By way of the present appeal, the appellants have challenged the judgment passed by the Court of learned Additional District Judge, Mandi, District Mandi, (H.P), in Civil Appeal No.48 of 1999, dated 28.3.2005, vide which, the learned lower Appellate Court has set aside the judgment and decree passed by the then learned Sub Judge 1st Class, Jogindernagar, District Mandi, in Case No.149 of 1996, dated 12.5.1999.

(2.) Material facts necessary for adjudication of this Regular Second Appeal are that appellants/plaintiffs (hereinafter referred to as 'plaintiffs') maintained a suit for possession and mandatory injunction against the respondent/defendant (hereinafter referred to as 'defendant') alleging that plaintiff is recorded as co-owner-in-possession of the suit land alongwith other co-sharers, whereas the defendant has no right, title or interest over the suit land. The suit land is situated in Mohal Tharu, Pargana Ahju, Tehsil Jogindernagar, District Mandi, (H.P) (hereinafter referred to as 'suit land) and is adjacent to the shop of plaintiff and the defendant. Defendant during the year 1992, moved an application before the Assistant Collector 2nd Grade, Jogindernagar, alleging that he is in possession of the suit land and prayed that he be entered in possession of the suit land and Assistant Collector 2nd Grade, Jogindernagar, on 24.12.1992, ordered the defendant to be recorded in possession of the suit land as 'Gair Marusi' tenant, which order of Assistant Collector, 2nd Grade, Jogindernagar, is illegal, null and void and not binding upon the plaintiff, as no relief of tenancy was claimed by the defendant and there was no evidence before Assistant Collector 2nd Grade, Jogindernagar. As such, the order passed by the Assistant Collector 2nd Grade, Jogindernagar, is against the provisions of law and is liable to be set aside. The defendants after passing of the order without any right, title or interest started interference over the suit land and the defendant now has started construction work over the suit land inspite of repeated request of the plaintiff not to do so, in such a manner has encroached upon the suit land.

(3.) Defendant contested the suit by raising preliminary objections qua maintainability, jurisdiction, non-joinder of necessary parties, estoppel, valuation and suit is bad for want of better particulars. On merits, it has been contended that the plaintiff is co-owner-in-possession of the suit land. It is also denied that the defendant has no right, title or interest in the suit land. It is denied that the order of Assistant Collector 2nd Grade, Jogindernagar, is illegal, null and void and not binding upon the plaintiff, but stated that the Assistant Collector 2nd Grade, Jogindernagar, ordered that the defendant is to be recorded in possession of the suit land as a tenant, which order is legal and binding upon the parties. It has been stated that the defendant has been in possession of the suit land since 1972 and the plaintiff is not in possession of the suit land. It has been contended that the defendant being in possession of the suit land has got every right to raise construction over the suit land.