CHATTER SINGH Vs. DINA NATH

JUDGEMENT

(1.) The appellants were plaintiffs and their suit being CS No. 93/1 of 91/90 was dismissed by Sub-Judge 1st Class (2), Shimla on 16-11-1994 and their Appeal No. 3-S/13 of 1995 was dismissed by the learned Addl. District Judge, Shimla on 31-5-1999, they are now in second appeal.

(2.) The brief facts of the case are that appellants had filed a suit for permanent prohibitory injunction against the respondent regarding land comprised in Khata No. 18, Khatauni No. 18, Khasra No. 69/16, Mouja Kasumpti, Pargana Chabrogti, Tahsil and District Shimla along with mandatory injunction directing the respondent to demolish structure already raised on the land in dispute. The case of the appellants is that they are owners of the suit land, adjoining to the suit land is Khasra No. 68/16 owned by respondent, who started construction of his house and encroached upon 12 feet land of the appellants, the appellants opposed the construction of respondent, who agreed to give equal land in exchange to the appellants. The respondent continued with further encroachment of the land of the appellants and, therefore, suit was filed.

(3.) The suit was contested by the respondent and he took preliminary objections of lack of cause of action, valuation, non-joinder of necessary parties and maintainability of the suit. On merits, the respondent took the plea that he has not encroached upon any land of the appellants and, therefore, there is no question of his agreeing to give any land to the appellants in exchange. The respondent has also pleaded that he has no intention to encroach any land of the appellants. The appellants filed replication and denied the stand of the respondent and re-asserted their case. On the pleadings of the parties, the following issues were framed by the trial Court:-