PREM CHAND Vs. CHUNI LAL (DECEASED)

JUDGEMENT

(1.) By way of the present appeal, the appellant has challenged the judgment passed by the Court of learned District Judge, Hamirpur, in Civil Appeal No.70 of 2004, dated 11.5.2005, vide which, the learned lower Appellate Court, has affirmed the judgment and decree passed by the learned Civil Judge (Senior Division), Hamirpur, in Civil Suit No.18 of 1998, dated 15.5.2004.

(2.) Material facts necessary for adjudication of this Regular Second Appeal are that plaintiff/appellant (hereinafter referred to as the 'plaintiff') maintained a suit for Permanent Prohibitory Injunction against the defendants/respondents (hereinafter referred to as 'defendants') alleging that he is co-owner-in-possession, as co-sharer of the suit land comprised in Khata No.57 min, Khatauni No.140, Khasra No.553, measuring 4 kanals 9 marlas, situated in Tika Jakhyol, Mauza Mehalta, Tehsil Bhoranj, District Hamirpur. There is a road on the suit land, but defendants have no right, title or interest therein and are stranger to the suit land. Defendants started interfering in the suit land by digging the same adjoining to their own and possessed land for raising construction of a house. Defendants did not desist from their unlawful acts, despite repeated request.

(3.) Defendants contested the suit by raising preliminary objections qua cause of action, estoppel, maintainability and dismissal of suit with special costs, under Sec. 35-A of the Code of Civil Procedure. On merits, defendants stated that the suit land was 'Gair Mumkin Raste' owned by so many persons including the plaintiff. They had been using the alleged path for the last fifty years. Defendants never encroached upon the suit land, as no construction over the suit land was raised by the defendants. Rather, the construction was made on their owned and possessed land of Khasra Nos.518, 519 and 520 comprising of Khasra No.45.