ATMA RAM Vs. DAYA DEVI AND OTHERS

JUDGEMENT

(1.) This regular second appeal has been filed against the judgment and decree passed by the learned first appellate Court on 29.05.2017 whereby she dismissed the appeal filed by the appellant/plaintiff (hereinafter to be referred to as the plaintiff) upholding the judgment and decree passed by the learned trial Court on 28.05.2012 wherein the suit filed by the plaintiff for permanent prohibitory injunction and in the alternative for possession came to be dismissed.

(2.) The facts necessary for adjudication of the present appeal are that the plaintiff filed a suit for permanent prohibitory injunction against the respondents/defendants (hereinafter to be referred to as the defendants) restraining them from uprooting the hedge, raising any construction and changing nature of the suit land. In the alternative, suit for possession was filed of the land comprising Khasra No. 838, measuring 0-05-09 hectares. It was contended that the plaintiff is the joint owner in possession along with other co-sharers of the suit land, whereas, the defendants are strangers and, therefore, have no right, title and interest in the suit land. According to plaintiff, on 16.10.2009, the defendants started forcibly uprooting the iron poles of the hedge which were fixed by the plaintiff on the suit land and did not adhere to the request of the plaintiff. It was further contended that the plaintiff had sought demarcation of the suit land vide application dated 17.01.2008 and the Patwari visited the spot, but did not give the demarcation, hence the suit.

(3.) The defendants contested the suit by filing written statement wherein preliminary objections regarding maintainability, locus standi, cause of action, valuation, estoppel and limitation, were raised. On merits, it was averred that the defendants neither caused any interference nor claimed any right, title and interest in the suit land. It was further contended that the plaintiff had filed the suit just to harass the defendants as earlier also a Civil Suit bearing No.43/94 had been filed by the plaintiff against the defendants which had been dismissed. It was also contended that the plaintiff had filed an application for demarcation in which the demarcation was given by the field staff on 202009. Further, it was contended that the wall and 'chhajja' of the defendants were more than 25 years old and, therefore, the suit was not maintainable.