GANGA RAM Vs. BALIA & OTHERS

JUDGEMENT

(1.) This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 02.11.2006, passed by learned District Judge, Shimla in Civil Appeal No.50-S/13 of 2006, reversing the judgment and decree dated 03.05.2006 passed by learned Civil Judge(Senior Division), Theog, District Shimla, H.P., whereby suit for permanent prohibitory injunction having been filed by the plaintiff-respondent (hereinafter referred to as the 'plaintiff') was dismissed, however, it was ordered that the plaintiff and his brother be not evicted therefrom except in due course of law.

(2.) Briefly stated facts, as emerged from the record, are that plaintiff filed a suit for permanent prohibitory injunction praying therein to restrain the appellants-defendants (hereinafter referred to as 'defendants') from dispossessing him as well as raising any construction upon the land comprised in Khasra No.52, measuring 0-07-60 hectares, situated in Chak Sainj, Pargana Jais, Tehsil Theog, District Shimla, H.P. (hereinafter referred to as the 'suit land'). It is alleged by the plaintiff that he alongwith his brother Budhi Ram is in settled possession of the suit land for the last 22 years, which was given to them in family arrangement by their mother; namely; Smt.Shobni. Plaintiff further claimed that land in question was given to them by Smt.Shobni since she was being maintained by them. Plaintiff further stated that Smt.Shobni had filed a Civil Suit bearing RBT No.54-1 of 2004/2003 for injunction against him as well as his brother, which was dismissed by Civil Judge (Junior Division), Chopal Camp at Theog on 14.10.2004. As per plaintiff, he along with his brother was found to be in possession of the suit land in the aforesaid Civil Suit having been filed by Smt.Shobni. Plaintiff further averred that defendant No.1 is alleged to have purchased a part of the suit land from Smt.Shobni and mutation was also attested on 16.09.2004 vide mutation No.98, but, said sale was a paper transaction as no possession was ever handed over to defendant No.1 because plaintiff and his brother were in settled possession of the suit land. Plaintiff further claimed that since defendant No.1 through defendants No.2 and 3 started interfering in the suit land, he was compelled to file suit, as described herein above, seeking therein relief of permanent prohibitory as well as mandatory injunction.

(3.) Defendants, by way of detailed written statement, refuted the aforesaid claim having been put forth by the plaintiff and stated that plaintiff as well as his brother had no right, title or interest over the suit land and they are also not in possession of the suit land. Defendants further averred that Smt.Shobni was owner of the suit land and she had sold the entire land to different persons including defendant No.1, who had also purchased suit land vide registered sale deed dated 25.08.2004 for a consideration of Rs.15,000/-. Defendants further claimed that on the basis of aforesaid sale deed, mutation was attested in favour of defendant No.1 and he was also given possession. In nutshell, defendant No.1 claimed himself to be bona fide purchaser for consideration. Defendants further averred that construction was started in the month of April, 2005 and thereafter pillars were constructed and huge material was collected by defendant No.1 for raising construction and at no point of time objection, if any, was raised to the construction by the plaintiff and as such he has every right to raise construction over the suit land. Accordingly, he prayed for dismissal of the suit.