SWARUP KISHAN Vs. SHEELA DEVI

JUDGEMENT

(1.) The present respondents/their predecessors filed a suit for possession of vacant site ABCDEF measuring 497 square feet as described'in the plaint. The suit was also filed for declaration that the defendants had no right to close the entrance at point- 'XY' to the land in dispute owned and possessed by the plaintiffs and the space around it inclusion of Kholas shown green in the ,site plan, which the plaintiffs have acquired as an easement of necessity, with a consequential relief that the gate at point XY as shown in the site plan, be removed

(2.) The case of the plaintiffs, as pleaded, had been that the abadi, houses and Kholas of houses owned and possessed by the plaintiffs were situated in Mohalla Rampur in Nurpur, as shown in the site plan attached with the plaint. According to plaintiffs, they generally remained out due to their professional engagements and some of.them have purchased lands separately and built their abadi at different places separately. Defendants 1 and 2 who are closely related to each other, after conniving with defendants 3 and 4, got a false sale deed executed from defendants 3 and 4 in favour of defendant No. 2 on 29.3.1974, regarding the land owned and possessed by the plaintiffs described as ABCDEF measuring 497 square feet shown by red line in the site plan attached with the plaint. The plaintiffs' further case has been that on the basis of the said sale-deed, defendants 1' and 2 took forcible possession of the suit land which was never owned and possessed by defendants 3 and 4, nor they had any right to sejl the same. According to plaintiffs, defendant No. 1, without any right, fixed up a temporary 'Fatak' at point 'XY as shown in the plan attached, in March 1974 even though the plaintiffs had been using this passage from the time of their forefathers for coming and going to their abadi, as there was no other way for coming and going to the plaintiffs' abadi and the plaintiffs as such had a right to use the same by way of easement of necessity and the defendants had no right whatsoever to the passage in djspute. According to plaintiffs, in August 1974, when they came to- know of the unauthorised and unlawful act of the defendants, the plaintiffs complained to Sub-Divisional Magistrate, Nurpur, who visited the spot and found the matter of a civil nature and directed the plaintiffs to get the matter settled in a Civil Court. Hence the present suit was filed.

(3.) The defendants contested the suit. It was denied by the defendants that the plaintiffs were the owners of the disputed property. The forcible dispossession, as claimed by the plaintiffs, was also denied. According to defendants, the disputed land was earlier owned by defendants 3 and 4, who had lawfully sold it in favour of defendant No. 2 through a registered sale-deed dated 29.3.1974. Defendant No. 1 was stated to be an agent of defendant No. 2 and as such, looking after the property. It was pleaded that the 'Fatak' was existing there for more than 20 years and this gate was got fixed by defendant No. 1 with the consent of defendants 3 and 4 and sons of Chet Ram. This defendant No. 1 was also stated to have purchased the land of'Chet Ram in the year 1971. The alleged easementary rights claimed by the plaintiffs were also denied. Various preliminary objections were also raised in the written statement.