J&K HOUSING BOARD Vs. HARBANS KOUR

JUDGEMENT

(1.) This appeal is directed against judgment dtd. 3/5/2010 passed by the learned Additional District Judge, Jammu (hereinafter to be referred as 'the 1st Appellate Court'), whereby an appeal filed by the respondents against order dtd. 20/2/2010 passed by the learned Sub Judge (CJM), Jammu (hereinafter to be referred as 'the trial court') has been allowed and the judgment passed by the trial court has been set aside.

(2.) The facts leading to the filing of the instant appeal are that respondents/plaintiffs had filed a civil suit against appellant/defendants before the trial court seeking permanent prohibitory injection restraining the defendants from interfering ino the land measuring 19 marlas, comprised under survey No. 314 min situated at Thangar Tehsil Jammu. It was pleaded by the plaintiffs that they have purchased the land in question by virtue of a sale deed dtd. 18/8/1988 and a mutation bearing No. 424 stands attested in favour of the plaintiff, Karam Singh. According to the plaintiffs, they have set up a Saw Mill on the land in question after obtaining licence from the competent authority. It was alleged in the plaint that the defendants, particularly defendant No. 3-J&K Housing Board is threatening to interfere in the possession of the plaintiffs over the suit property, which compelled the plaintiffs to file a suit for injunction against the defendants on 26/9/1997. The said suit was dismissed as withdrawn with liberty to the plaintiffs to file a fresh suit. Accordingly, the plaintiffs filed another suit, which is subject matter of the instant appeal seeking permanent prohibitory injunction against the defendants.

(3.) The defendants, appellant herein contested the suit by filing its written statement, in which it was claimed that the land in respect of which the plaintiffs claim their ownership is subject matter of award, where-under the appellant-Housing Board has acquired the said land in the year 1982. According to the defendants, the plaintiffs are the enc0roachers and they have encroached upon the land belonging to the Housing Board. It has been pleaded that out of the total land of 59 kanals and 9 marlas under khasra No. 314, the Housing Board has acquired 34 kanals and 5 marlas of land by virtue of award dtd. 30/11/1981. It has been pleaded that the area of land claimed by the plaintiffs falls on the western side of the National Highway Bye-pass, which is a part of the acquired land, whereas rest of land under khasra No. 314 has come under the National Highway Bye-pass and some portion of it is located on the northern side of the National Highway. It has been further submitted that land in question has been kept vacant by the respondent-Housing Board for developing it into a green belt parallel to the National Highway, but the same has been encroached upon by the plaintiffs.