MUKANDI LAL Vs. BANWARI

JUDGEMENT

(1.) By way of the present appeal, the appellants have challenged the judgment passed by the Court of learned District Judge, Sirmaur District at Nahan, (H.P), in Civil Appeal No.15-CA/13 of 2002, dated 30.12.2003, vide which, the learned lower Appellate Court has set aside the judgment and decree passed by the then learned Sub Judge 1st Class, Court No.1, Paonta Sahib, District Sirmaur, in Civil Suit No.119/1 of 2000, dated 29.1.2002.

(2.) Material facts necessary for adjudication of this Regular Second Appeal are that respondents/plaintiffs (hereinafter referred to as 'plaintiffs') maintained a suit for possession on the basis of title against the appellants/defendants (hereinafter referred to as 'defendants') comprised in Khasra No.425/1, measuring 1 biswa 11 biswansi, situated in Mauza Shaympur Gorkhuwala, Tehsil Paonta Sahib, District Sirmaur, (H.P) (hereinafter referred to as 'suit property'). The plaintiffs have alleged that they alongwith proforma defendants are owners-in possession of land comprised in Khasra No.425, measuring 16 bighas and 14 biswas. Defendants No.1 to 3 have no right, title or interest over the suit property. The plaintiffs have further alleged that in the month of Sept., 1996, Civil Suit bearing No.280/1 of 1996, decided on 5.6.2000, defendants have encroached upon the suit property. They have started the digging of foundation over the suit property on 5.10.1996 and plaintiffs have maintained a Civil Suit for injunction and defendants were restrained from raising any construction over the suit property, vide order dated 19.10.1996. Despite stay, defendants have raised the foundation and 'Khurlies' (place to put fodder for cattle to eat) over 1 biswa 11 biswansi of suit property. Thereafter, the plaintiffs obtained necessary records from the Patwari Halqua, who prepared tatima on the spot and found that defendants have encroached upon 1 biswa 11 biswansi, out of Khasra No.425 illegally and unauthorizedly and the possession of defendants over Khasra No.425 was that of trespassers. The plaintiffs have further alleged that defendants are dangerous and quarrelsome people.

(3.) Defendants No.1 to 3 contested the suit by raising preliminary objections that the present suit is not maintainable in the present form and that the plaintiffs are having no cause of action to file the suit. On merits, they have admitted that land is denoted by Khasra No.425 measuring 26 bighas 14 biswas, situated in mauza Shyampur, Gorkhuwala, Tehsil Paonta Sahib, District Sirmaur at Nahan. They have denied that inspite of stay, they have raised foundation and constructed 'Khurlies' over 1 biswa and 11 biswansi of the suit property. Defendants have further alleged that they have completed the foundation of kitchen prior to filing of the suit and they have raised construction of wall upto 5 feet in Khasra No.424, which was owned and possessed by them and if it is proved that any part of the land under construction of kitchen comprised in Khasra No.425, in that event they have become owners of the same by way of adverse possession.