CHANAN Vs. HARI RAM

JUDGEMENT

(1.) This appeal has been directed against judgement, decree dated 17.9.1997 passed by learned District Judge, Solan camp at Nalagarh, in Civil Appeal No. 21-NL/13 of 1994, affirming the judgement, decree dated 20.1.1994, passed by learned Sub Judge Ist Class, Arki camp at Nalagarh, in case No. 328/1 of 1989/211/1 of 1991. The appellant was defendant No. 1, respondent No. 1 was plaintiff and respondent No. 2 was defendant No. 2 in the suit.

(2.) The pleaded case of respondent No. 1 was that suit land comprised in khasra No. 376/332 measuring 15 biswas, village Ghansot, Hadbast No. 135, Tehsil Nalagarh, District Solan was allotted to him by the State being landless in the year 1975. The respondent No. 1 since then is exclusive owner in possession of the suit land. There is a Bangala Colony adjacent to the suit land where appellant and respondent No. 2 were residing. They threatened to encroach upon the suit land without any right, title. They even attempted to dig foundations on a part of the suit land. The respondent No. 1 had reported the matter to Sub Divisional Magistrate, Nalagarh as well as to the police and police came to the spot on 18.12.1989. The threats of appellant and respondent No. 2 were continuing, therefore, respondent No. 1 filed a suit for permanent prohibitory injunction restraining the appellant and respondent No. 2 from interfering in possession of respondent No. 1 on the suit land. In alternative, respondent No. 1 had prayed for decree of possession in case appellant and respondent No. 2 succeed in dispossessing him from the suit land or encroaching any part of the suit land.

(3.) The appellant contested the suit by filing written statement and took preliminary objections of maintainability, lack of cause of action and locus-standi of respondent No. 1 to file the suit. On merits, it was denied that respondent No. 1 is owner in possession of the suit land. It was pleaded that appellant is in possession of the suit land to the extent of 1352 Sq. feet out of the suit land as owner, he has constructed a residential house, one Chhapar and courtyard thereon since March 1959 himself and through his predecessor in title. It has also been pleaded that predecessor in title of appellant came to Nalagarh in March 1959 and occupied the suit land by erecting Jhuggi and Chhapar and on remaing portion courtyard to the extent of 1352 Sq. feet. Later on after five six years, the predecessor in title of appellant had raised Kotha in place of Kutcha Jhuggi over the suit land. The predecessor in title of appellant had also applied to the State for allotment of some land for the purpose of abadi, as Kotha and Chhapar constructed by the predecessor of appellant was not sufficient to accommodate ten family members. The State allotted land comprised in khasra No. 385/377/332, measuring 2 biswas to the predecessor of appellant in the year 1975-76, which was adjacent to the suit land. Thus the appellant is in possession of Kotha and Chhapar, courtyard measuring 1352 Sq. feet out of the suit land. The possession of the appellant is uninterrupted, continuous and hostile to the knowledge of all concerned, he has become owner of land comprised 1352 Sq. feet by way of adverse possession. The appellant has also taken the plea that allotment of land in favour of respondent No. 1 was illegal. It has also been pleaded that respondent is estopped from filing the suit. The respondent No. 2 did not file any written statement, in fact he was proceeded ex-parte. The respondent No. 1 filed replication and reiterated his stand. On the pleadings of the parties, the following issues were framed: