SAROJ AND OTHERS Vs. BEENA AND OTHERS

JUDGEMENT

(1.) Being aggrieved and dissatisfied with order dated 22.8.2017 passed by the learned District Judge, Chamba, in Civil Appeal No. 46/2002, whereby objections having been filed by the respondents-plaintiffs ('respondents' hereinafter) to the report of local commissioner dated 15.7.2003, came to be allowed and report dated 15.7.2003 prepared by Naib Tehsildar, Chamba, was set aside, petitioners-defendants have approached this Court by way of instant proceedings.

(2.) Necessary facts as emerge from the record are that one Shri Anirudh (deceased) and others, plaintiffs before the trial Court, filed a civil suit bearing No. 59/97 against one Kamla (since deceased) and others, for possession of one room in the ground floor situate over Khasra No. 560/1, with further prayer to restrain the defendants from blocking the entrance/staircase of the plaintiffs. Plaintiffs pleaded before the Court below that they are recorded as joint owner-inpossession of the land comprised in Khasra Nos. 559 and 560 measuring 108 square yards and 2 square feet, which property stood already partitioned between the parties through a decree dated 7.6.1977 passed by the learned Sub Judge, Chamba. Possession of aforesaid property was received by the plaintiffs to the extent of their share after passing of the decree. Deceased Hiru, predecessor-in-interest of the plaintiffs was allotted property comprised in Khasra Nos. 559, 560/1 and 558/1 and since then plaintiffs continued to be in possession of the same. However, one room in the ground floor was temporarily given to the defendants for use as kitchen in the building comprised in Khasra No. 560/1 with an understanding that the defendants would vacate it as and when required by the plaintiffs. There was a staircase leading to the upper storey from the ground floor adjoining to the said room occupied by the defendants but defendants forcibly took possession of aforesaid staircase and they were not allowing plaintiffs to use the same. Defendants were requested time and again to hand over the vacant possession of the said room but they failed to do so as such, civil suit as detailed herein above came to be instituted at the behest of the plaintiffs for decree of mandatory injunction.

(3.) Defendants by way of written statement denied the claim of the plaintiffs and averred that one room in the ground floor and one room in the first floor were allotted to the defendants in the partition of Khasra No. 560 by the learned Senior Sub Judge, Chamba. It was admitted that predecessor-in-interest of the plaintiffs had filed a suit for partition which was decreed by the Court on 7.6.1977. Thereafter, Hiru filed an execution for possession of 1/3rd share but he died during these proceedings and present plaintiffs came to be brought on record. Partition of property comprised in Khasra Nos. 560, 561 and 559 was carried out by the local commissioner and 1/3rd share thereof was handed over to the plaintiffs. It was further asserted that out of Khasra No. 560, which consisted of a double storeyed house, Khasra No. 560/2 measuring 43 square yards and 3 square feet was allotted to the defendants, in which one room was in the ground floor and one room in the first floor and since then, defendants are in possession of one room in ground floor. However, room in the first floor, which had fallen to the share of defendants continued to be in possession of the plaintiffs, who despite requests, did not vacate the same and filed the suit to harass them. It was categorically denied that the defendants were obstructing the plaintiffs from using the staircase. It was claimed that there was a common staircase to the building comprised in Khasra No. 560/1, which had been allotted to the plaintiffs and Khasra No. 560/2 had been allotted to the defendants.