SMT. MANGLA DEVI Vs. RATTAN CHAND

JUDGEMENT

(1.) Instant Regular Second Appeal under Sec. 100 of the Civil Procedure Code has been filed against Judgment and decree dated 1.12.2004 passed by District Judge, Hamirpur, HP in Civil Appeal No. 43 of 2002, whereby judgment and decree dated 28.2.2002 passed by Sub Judge 1st Class (I), Hamirpur, HP, in Civil Suit No. 264 of 1994 have been set aside, whereby suit of the plaintiffs for permanent prohibitory injunction and, in the alternative, for possession by way of demolition, was decreed.

(2.) Briefly stated facts as emerge from record are that the appellants-plaintiffs ('plaintiffs' hereafter) filed a suit for permanent prohibitory injunction and, in the alternative, for possession, in the court of learned Sub Judge 1st Class, Hamirpur averring therein that suit land comprised in Khata No. 39, Khatauni No. 42, Khasra No. 2 measuring 1 Kanal 5 Marla as entered in the Jamabandi for the year 1986-87, situated in Tika Ruttain, Mauza Bara, Tehsil Nadaun, District Hamirpur (H.P.) ('suit land', hereafter) is in their ownership and possession. Plaintiffs further averred in the plaint that defendants are strangers to the suit land and are owner of adjoining land as such have no lawful right to interfere in the peaceful possession of the plaintiffs. Plaintiffs further averred in the plaint that in the year 1993, defendants started damaging old boundaries by digging the land and despite there being objections, they kept on doing so. Plaintiffs further stated that defendants claimed that they were raising construction in their own land. Plaintiffs applied for demarcation, which was conducted on 10.8.1993, wherein, defendants were found to have encroached upon some portion of suit land shown as Khasra No. 2/1 measuring 1 Marla as per Tatima attached with the plaint. On the basis of aforesaid demarcation report, plaintiffs requested defendants to vacate the possession of suit land, but in vain. Defendants did not accept the request of plaintiffs to vacate the premises or to part with the encroached portion of suit land, as such, cause of action accrued in favour of the plaintiffs in the year 1993, when defendants allegedly started interference and demolished boundaries of suit land. In the aforesaid background, plaintiffs filed suit as mentioned above, praying therein for decree of permanent prohibitory injunction and, in the alternative, for possession, in case, defendants are found in possession of suit land.

(3.) Defendants, by way of filing written statement, refuted aforesaid claim of the plaintiffs by raising preliminary objections qua estoppel, non-joinder of necessary parties and proper valuation. Defendants also claimed that one kitchen over the land comprising of Khasra No. 3 min and new Khasra No. 175/3, measuring 2 Marla situated in Tika Ruttain, Mauza Bara, Tehsil Nadaun, is owned and possessed by the defendants. Defendants further claimed that aforesaid structure is in existence at the spot for the last 100 years and plaintiffs have shown this built up kitchen room in the suit land wrongly, in connivance with the settlement staff at the back of the defendants. Defendants further contended that plaintiffs have purchased suit land from Bakshi Ram son of Shri Jalam, resident of Tikka Ruttain, Mauza Bara, Tehsil Nadaun, District Hamirpur, HP in 1974-75 and at that time, aforesaid kitchen of the defendants was existing at the spot also. Defendants further contended that during his life time, Bakshi Ram as well as plaintiffs got suit land demarcated several times. As per the defendant, kitchen of the defendants over the land in Khasra No. 175/3 was part of old Khasra No. 3 min and PWD authorities also found this portion of the land measuring 2 Marla in Khasra No. 3 min in the process of acquisition of this land vide notification dated 28.1.74. Further, the defendants in the written statement claimed that if aforesaid facts are not proved on record, even then, defendants have become owners by way of adverse possession of suit land measuring 2 Marla as defendants are coming in possession of suit land, for the last 100 years and there possession over the same is open, hostile, continuous, interrupted and to the knowledge of the real owners. In the aforesaid background, defendants prayed that the suit may be dismissed.