KARAM CHAND Vs. KRISHEN KUMAR

JUDGEMENT

(1.) THIS is a civil second appeal arising out of a suit for injunction brought by the respondents Krishen Kumar and Kashmiri Lal restraining the defendant No. 1 Karam Chand from constructing a house on agricultural land, under survey No 195/ 112 situate in village Chak Panali Tehsil Jammu with the allegation that under this survey No. 15 marlas of land belonged to the plaintiff as well as defendants Nos. 2 to 4. The defendant No. 1 in order to cause loss to the plaintiff and the pro -forma defendants was collecting bricks etc to construct a house on this land which he was not entitled to without the owners permission.

(2.) THE defence of the appellant defendant No. 1 was that he is a protected tenant of this land and was legally competent to construct a house thereon in the shape of improvement. The defendant had constructed a residential house on this land. He was rebuilding the same as the previous house was about to collapse. The previous house was build with the permission of the plaintiff. The land on which the construction was going to be set up did not produce any crop. The jurisdiction of the civil court to hear the suit was denied. Two issues were struck by the trial court in this case on the pleadings of the parties and they were as under : -

(3.) THE trial court of Munsiff Jammu decided issue No. 1 in favour of the defendant but decided issue No. 2 against him. The result was that the suit of the plaintiff was dismissed by the trial court on 22th May, 1964. An appeal was preferred in the court of the District Judge Jammu against the judgment of the Munsiff Jammu and on creation of Addl : District Judges Court at Jammu, this appeal was transferred to him and who by means of a decree dated 24 -10 -1967 reserved the decree of the trial court and decreed the respondents suit. Issue No. 2 was decided by the lower appellate court in the same manner as by the trial court holding that the civil court had jurisdiction to hear the case The trial court had held that the construction of the house was in the nature of improvement and the defendant appellant being a protected tenant was within his right to construct the house. The finding was resersed by the lower appellate court. Against this decree of the lower appellate court the present appeal has been preferred by the defendant appellant.