RASHEED AHMAD Vs. RAFIQ MOHAMAD

JUDGEMENT

(1.) The present regular second appeal is maintained by the appellant, who was the defendant before the learned trial Court (hereinafter to be called as " the defendant") , laying challenge to the judgment and decree, dated 30.06.2006, passed by learned Additional District Judge, Sirmaur District at Nahan, H.P., in Civil Appeal No. 33-N/13 of 2005, whereby the judgment and decree, dated 02.08.2005, passed by the learned Civil Judge (Sr. Division) , Rajgarh, District Sirmaur, H.P., in Civil Suit No. 51/1 of 2004, was upheld, wherein suit of the plaintiff was decreed.

(2.) Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that the plaintiff filed a suit for permanent prohibitory injunction against the defendant, wherein he alleged that he is owner-in-possession of the suit land, comprised in Khata Khatauni No. 45/68, Khasra No. 401/188, measuring 5 Bighas, situated at Village/Mauja Mayog Jun, Tehsil Rajgarh, District Sirmaur (hereinafter to be called as "the suit land") and the defendant, who is totally stranger to the suit land, having no right, title or interest therein, started causing interference in it on 08.04.2004 by cutting grass and threatening to damage the peach crop. It has been further alleged that earlier also, i.e. in the last week of May, 2003, the defendant caused interference in the same manner and at that time, the plaintiff had also filed a suit for permanent prohibitory injunction against him, however the same was dismissed in default. Though, the defendant was asked not to do such illegal acts, but of no avail. On the contrary, he threatened the plaintiff to dispossess from the suit land by way of forcible means.

(3.) By filing written statement, the defendant raised preliminary objections qua maintainability and locus standi. On merits, it has been averred that the plaintiff is not absolute owner-in-possession of the suit land and in fact, he alongwith one Salag, sold the suit land to him (defendant) by way of an agreement to sell for a consideration of Rs. 14, 000/-, out of which Rs. 4,600/- were paid to the plaintiff. As far as the land of Salag is concerned, the same was acquired by the plaintiff, being a landless person and there was special clause in the revenue papers that he was not competent to get the sale registered in favour of the defendant for a period of 20 years from the date of acquisition. It has been further averred in the written statement by the defendant that he has been in possession of the suit land since 15.07.1990 and on 18.05.1992, the plaintiff had been paid Rs. 5,000/-, followed by Rs. 5,000/-, which were paid to him on 17.08.1992. The defendant was ready and willing to perform his part of contract by paying Rs. 1,000/- more as verbally demanded by the plaintiff, in addition to the sale consideration and the plaintiff has nothing to do with the land, which is owned and possessed by the defendant. Further the plaintiff had constructed four rooms in the suit land and there is no peach tree standing in the same. The plaintiff is not aware where the land was allotted to him and the defendant has become owner of it by way of adverse possession.