MEHAR SINGH Vs. SUBHASH CHAND

JUDGEMENT

(1.) The plaintiff is the appellant, who after having lost before both the courts below, has filed this second appeal.

(2.) The plaintiff filed a suit for possession on the allegation that he was owner of the land bearing Khewat No.8 min, Khatauni No.10 min, Khasra No.1468/283 measuring 0-02-76 hectare situated in Mohal Pial, Mauza Lodwan, Tehsil Nurpur, District Kangra, H.P. He averred that the defendant was a stranger to the suit land and owns the land falling in Khasra No. 1469/283, which adjoins the land of the plaintiff. The defendant taking advantage of absence of the plaintiff raised shops and had thereby encroached upon the suit land to the extent of 26 meter x 3 meter measuring 0-00-78 HM in Khasra No. 1468/283 situated in Mohal Pial, Mouza Lodwan, Tehsil Nurpur, District Kangra, H.P. Further case of the plaintiff is that he asked the defendant to remove the shops from the suit land but he remained adamant. The plaintiff applied for demarcation wherein it was found that the defendant had encroached upon the land of the plaintiff to the extent of 0-00-78 HM measuring 26 meters x 3 meters, i.e. suit land. The plaintiff sought decree for possession with regard to the suit land, i.e. encroached by the defendant. Decree for permanent prohibitory injunction was also sought restraining the defendant from raising further construction in the suit land.

(3.) The defendant contested and resisted the suit by filing written statement. The case of the defendant was that the suit was not maintainable as suit land was still joint and had not been partition. The remedy of the plaintiff was to seek partition and not possession. The defendant alleged that he purchased the land vide sale deed dated 3.4.1989 and had constructed the shops and at no stage plaintiff protested the construction of shops. He was carrying on his business. He further averred that the demarcation was wrong and in violation of instructions of Financial Commission.