SHAM LAL Vs. SWARNA DEVI

JUDGEMENT

(1.) SHAM lal, plaintifif/appellant, has commenced a suit for permanent prohibitory injunction refraining the respondents/defendants to encroach upon his land measuring 14 marlas located at village Sangoor and raise any construction unauthorisedly and illegally thereon with a further relief of mandatory injunction directing the defendants/respondents to remove the wall forcibly erected on the plaintiff's plot. In resisting the suit of the plaintiff by filing a demurrer, defendants/respondents asserted that a piece of land measuring 10 marlas in Survey No. 118/82/58 had been purchased by them and are in its continuous possession. Defendants emphatically denied to have encroached upon the land of the plaintiff/appellant and raised any construction. As many as four issues were framed consistent with the context and contour to the pleadings of the parties and which read as under: - '1. Whether plaintiff was at the time of suit in possession of 14 marlas of land comprised in Khasra No. 118/82/58 situated at village Sangoor and also enjoying the right of user over the 5 1/2 ft. wide land exixting on the southern side adjoining to the said plot both fully described and specified in the Titma Shajra annexed with the sale deed dated 21 -6 -1984 forming part of the plaint.....OPP.

(2.) WHETHER defendants cause interference into plaintiff's possession, right of enjoyment and user over his land and illegally started constructing a wall over the portion of the plaintiff's said plot of land after covering the said lane (Galli)...OPP.

(3.) RELIEF .' 2. After the parties led evidence in their respective support and rebuttal of the issues, the burden of which was on them to discharge, the Trial Court decided the issues in favour of the plaintiff/appellant and decreed the suit. Aggrieved by the judgment and decree passed by the Trial Court, respondents/defendants impugned its correctness before the First Appellate Court (District Judge, Udhampur). On appreciation of the evidence and hearing the parties, the First Appellate court reversed the judgment of the Trial Court in view of the finding on issue No. 2 and dismissed the appellant's/plaintiffs suit. 3. It is this judgment and decree passed by the First Appellate Court, in dismissing the appellant's/plaintiffs suit against which Civil Second Appeal has been preferred by the unsuccessful plaintiff/appellant in this Court, solely on the question formulated by the appellant, which reads as under: - 'Whether the order of the learned trial court can be set aside by the appellate court on the ground that the description has not been given in the plaint and when the issue of description has not been framed ?'