GADKU RAM Vs. KRISHANI DEVI & OTHERS

JUDGEMENT

(1.) The plaintiff instituted a suit against the defendants, claiming therein a decree for permanent prohibitory injunction, as also, a decree for mandatory injunction. The suit of the plaintiff stood decreed by the learned trial Court. In an appeal carried therefrom by the defendant/appellant herein before the learned First Appellate Court, the latter Court dismissed the appeal. In sequel thereto, the defendant/appellant herein is driven to institute the instant appeal herebefore.

(2.) Briefly stated the facts of the case are that the plaintiff is owner in possession of the suit land measuring 6.6 bighas, comprised in Khasra No.1364/494, Khata Khatoni No.89 min/114 min, situated in village Gehrwin, Pargana Geharwin, Tehsil Jhanduta, District Bilaspur, H.P. over which the defendants have got no right, title or interest. However, on 20.2.1997, they forcibly entered the suit land and started digging it. When she objected, they threatened to forcibly occupy the suit land by raising construction thereon. It was further averred that during the pendency of the suit, the defendants managed to forcibly occupy land measuring 9 biswansies by constructing boundary wall and shed covered with tin on the part of the suit land comprised in Khasra No.1364/494/2/1 as shown in the Tatima attached with the report of Local Commissioner/Tehsildar of 6.11.2001. Consequently, she prayed that a decree for permanent prohibitory injunction restraining the defendant from causing interference in the suit land, measuring 6.6. bighas, in any manner including to change its nature and cut tress therefrom and a decree for vacant possession of land measuring 9 biswansies comprised in Khasra N.1364/494/2/1 occupied, forcibly by the defendants during the pendency of the suit, by demolishing the boundary wall and shed covered with tin, be passed in her favour and against the defendants.

(3.) The defendants contested the suit and filed written statement, wherein, they have taken preliminary objections inter alia maintainability, valuation and estoppel. ON merits, it was asserted that the plaintiff had sold land measuring 4 biswas out of the suit land comprised in Khasra No.1364/494/1 vide registered sale deed dated 11.1.1991 in favour of replying defendant No.2 for a consideration of Rs.11,000/- and also delivered the possession of aforesaid 4 biswas of land to him on same day. The defendants have got no concern with the remaining suit land. As far as the land is concerned, they have got every right, title or interest in the same which was purchased by replying defendant No.2 from the plaintiff for valuable consideration, as they are in possession of the same. It is further submitted that there is no question to cause interference, in any manner, over the rest of the suit land. It is submitted that when the land was purchased, a spot tatima was also prepared and in consequence thereof, its possession had been delivered to replying defendant No.2, who constructed a shop thereon besides installing welding set etc. The aforesaid had been done with the consent of the plaintiff and also to her notice and knowledge. At that the time, the plaintiff not doubted that replying defendant No.2 was going to raise construction on land comprising khasra No.1364/494/2/1, nor at that time, she had claimed the aforesaid land, belonging to her. Rather she had allowed the plaintiff to raise construction thereon. It was further pleaded that the plaintiff had already constructed her house on the side of the land purchased by replying defendant No.2, who also raised constructing touching the wall of the house of the plaintiff. The aforesaid facts and circumstances clearly got to show that the plaintiff is guilty of acquiescence. It was further averred that since the plaintiff had also encroached upon the land measuring 9 biswansies comprising khasra No.1364/494/1/2, for this reason, he filed a separate suit against her in order to seek the possession of the above said encroached land.