KANTA Vs. LRS OF CHANDMAL

JUDGEMENT

(1.) This Second appeal under Sec. 100 CPC has been filed against the judgment and decree dtd. 31/8/2019 passed by the Additional District Judge, Bali, District Pali in Civil Misc. Appeal No.30/2010, whereby the appeal filed against the judgment dtd. 4/5/2010 passed by the Civil Judge (J.D.) Bali, District Pali in Civil Original Suit No.62/1998 was dismissed.

(2.) The original Plaintiff-Chandmal (respondent No.1 herein) filed a suit for possession and mesne profit against Mishrimal and others i.e. appellant and respondent Nos.2 to 4 herein, with the averments that allotment of plot No.28 situated in Gram Panchayat, Khudala was made in his favour on 25/8/1974. In southern side, plot No.29 belonging to his brother Sunderlal existed. After obtaining permission by him and his brother Sunderlal, common boundary wall of both the plots were raised. It was further averred that defendant encroached upon some portion of his plot No.28 in the year 1991. This fact came in the knowledge of the plaintiff on 8/6/1992, when he came to Falna. Defendant denied to remove the encroachment. Plaintiff filed the suit for possession of the land encroached by defendant, which is marked with green colour in the map filed with the plaint.

(3.) Defendant denied allotment of plot No.28 to the plaintiff. He also averred that surrounding of the plot did not match with patta issued by the Gram Panchayat. Plaintiff himself admitted that in original patta, correct neighborhood was not mentioned. In this regard, plaintiff was required to file suit for declaration against the Gram Panchayat. Patta was void-ab-initio. Defendant did not make an encroachment, whereas, he was having legal possession on the plot purchased by him through registered sale deed. As per averments made by defendant, one Ratanlal purchased three plots, each measuring 20x40 feet from one Magraj. Out of those three plots, two plots were sold by Ratanlal to Anraj, Munna Bai w/o Mishrilal and Ashabai on 5/8/1980. After selling two plots, remaining one plot was in possession of Amritlal adopted son of Ratanlal. They were not been arrayed as party defendant, whereas, they were necessary parties. On the above ground, defendant prayed to dismiss the suit.