ROOP LAL Vs. DURGA DASS

JUDGEMENT

(1.) The present regular second appeal has been maintained by the appellant, who was defendant before the learned Trial Court (hereinafter referred to as "the defendant"), challenging the judgment and decree, dated 23.05.2006, of the learned District Judge, Mandi, H.P. passed in Civil Appeal No. 21 of 2005, whereby the judgment and decree, dated 30.12.2004, passed by learned Civil Judge (Junior Division), Chachiot at Gohar, District Mandi, H.P., passed in Civil Suit No. 174 of 1997, was upheld, wherein the suit of the respondents, who were plaintiffs before the learned Trial Court (hereinafter referred to as 'the plaintiffs'), was decreed.

(2.) Succinctly, the key facts, which are indispensable for determination and adjudication of the present appeal, are that the plaintiffs, by way of filing a suit, sought a decree of permanent prohibitory injunction against the defendant. The plaintiffs sought that the defendant be restrained from interfering in the land owned and possessed by them, which is comprised in Khewat Khatauni No. 90/130 and 93/133, Khasra No. 732, measuring 0-1-7 bighas, and Khasra No. 718, measuring 0-0-6 bighas, situated in Muhal Karao Hadbast No. 49, Illaqua Kohalu, Tehsil Chachiot, District Mandi, H.P. (hereinafter referred to as 'the suit land'). The plaintiffs have further averred that they are owners-in-possession of the suit land and the defendant has no right, title and interest over the suit land. The plaintiffs have further pleaded that the defendant caused unlawful interference in the suit land w.e.f. 10.10.1997 with an intention to dispossess the plaintiffs and despite repeated requests, the defendant did not desist from his unlawful acts of interference. The defendant also gave beatings to plaintiff No. 1 (Durga Dass). As per the plaintiffs, cause of action accrued in their favour on 01.10.1997 when the defendant started interfering in the ownership, possession and enjoyment of the plaintiffs over the suit land and right to sue accrued on 110.1997 when the defendant finally refused to desist from his illegal acts of interfering in the suit land.

(3.) The defendant, by way of filing the written statement, contested and resisted the suit of the plaintiffs. Preliminary objections, viz., maintainability, cause of action, suit being bad for mis-joinder and non-joinder of necessary parties, were raised. On merits, it has been averred that the plaintiffs are not owners of the suit land. As per the defendant, he has his residential-cum-commercial building over a part of Khasra No. 725, Khewat Khatauni No. 126/187, situated in Muhal Karao and Khasra No. 732, located on the same Muhal, measuring 0-1-3 bighas suit land, is being used by the defendant as his courtyard, as by the previous owner, from whom the defendant had purchased the same and had been using the same for the last over thirty years. The defendant had been using the building and the courtyard openly, peacefully, uninterruptedly and to the full knowledge of the plaintiff. The defendant has further pleaded that his possession has matured into right of easement through prescription and the plaintiffs have lost all rights over the suit land. The defendant has also pleaded that he has maintained a suit for permanent prohibitory injunction qua Khasra No. 7321, which was pending in the Trial Court and stay had been granted therein. He has further pleaded that Khasra No. 718 has been recorded in the joint ownership of plaintiffs and one Shri Janku, but the plaintiffs are out of possession from this land. It has been further contended by the defendant that the date, as portrayed by the plaintiffs qua unlawful interference by him over the suit land, is fictitious. As per the defendant, there is no question of restraining him from causing interference over the suit land and no cause of action has accrued in favour of the plaintiffs and the date of accrual of cause of action is also false and fictitious. Lastly, the defendant prayed for dismissal of the suit.