HARI SINGH Vs. JAGDISH CHAND AND OTHERS

JUDGEMENT

(1.) By way of present Regular Second Appeal, challenge has been laid to judgment and decree dated 7.10.2010, passed by learned District Judge, Kangra at Dharamshala, in Civil Appeal(RBT) No. 150-B/XIII- 2010/2006, reversing the judgment and decree dated 14.06.2006 passed by learned Civil Judge(Senior Division), Baijnath, District Kangra in Civil Suit No. 59/2003, whereby suit having been filed by the respondent-plaintiff (hereinafter referred to as the 'plaintiff') for permanent prohibitory injunction and in the alternative decree for possession was decreed.

(2.) Succinctly facts, as emerged from the pleadings adduced on record by the respective parties, are that the plaintiff filed a suit against the appellants-defendants (hereinafter referred to as the 'defendants'), seeking therein decree for permanent prohibitory injunction and in the alternative decree for possession qua the suit land as described in the plaint as well as in the impugned judgment. It has been averred in the plaint that the plaintiff is recorded as owner in possession of the suit land and the defendants have no right, title or interest in the suit land and, as such, they being stranger have no concern with the suit land. It has further been averred that the defendants, who are clever and shrewd persons, are trying to take forcible possession of the suit land with a view to change the nature of the suit land. It has further been averred by the plaintiff that defendant No. 1 had earlier filed a suit for specific performance against him to take the suit land on the basis of an invalid agreement, but same was dismissed and now defendants, with a view to take forcible possession, are interfering in the possession of the plaintiff. Plaintiff further alleged that the defendants are threatening to cut bamboo and other trees from the suit land and continuously interfering in the absence of the plaintiff and proclaiming to take forcible possession of the suit land. In the aforesaid background, plaintiff claimed that he is entitled to decree for permanent prohibitory injunction, restraining the defendants from interfering in any manner, or taking forcible possession, or constructing any structure, cutting the trees or changing the nature of the suit land. It is further prayed that in case, defendants succeed in taking forcible possession during the pendency of this suit, then decree for possession of the suit land may also be awarded in his favour.

(3.) Defendants, by way of written statement, refuted the aforesaid claim of the plaintiff by taking preliminary objections qua the maintainability, cause of action, locus standi, estoppel and claimed that the plaintiff is not at all in possession of the suit land and that the suit, having been filed by him, is barred by section 11 of the Code of Civil Procedure (hereinafter referred to as ''CPC'). Defendants further averred that the plaintiff entered into an agreement to sell the suit land to defendant No. 1 on 2.6.1989 and on the same day the plaintiff put defendant No. 1 into possession of the suit land and since then he is in possession of the suit land on the spot and plaintiff is having knowledge of the same. Defendants further claimed that defendant No. 1 is in possession of the suit land from the date of agreement and said possession is open, hostile, uninterrupted and within the knowledge of the plaintiff and he has become owner in possession of the suit land by way of adverse possession and, as such, plaintiff has no right, title or interest over the suit land. Defendants further averred that defendant No. 1 had filed a suit for specific performance and the same was dismissed but he is in possession of the suit land on the basis of agreement dated 2.6.1989 and till date plaintiff has not taken possession back from him, therefore, he is liable to be declared owner in possession of the suit land by way of adverse possession. It is further averred that the plaintiff had filed an application under Order 21, Rule 11 CPC for getting the possession of the suit land from defendant No. 1, which was dismissed on 11.6.2003 during the pendency of the suit which itself suggests that the defendant is in possession of the suit land, but the plaintiff has purposely concealed this fact from the Court to get the relief as prayed for in the plaint. Lastly, defendants averred that the plaintiff is estopped by his own act and conduct from filing this suit without any locus standi and the present suit has been filed merely to harass the defendants.