KESARIMAL Vs. BHIKAMCHAND

JUDGEMENT

(1.) This second appeal under Section 100 CPC is directed against the judgment and decree dated 11.9.2012 passed by the Additional District Judge, Phalodi, District Jodhpur, whereby the appeal preferred by the appellant against the judgment and decree dated 23.12.2010 passed by the Civil Judge (Sr.Div.), Phalodi has been rejected and the decree passed by the trial court has been upheld.

(2.) The facts in brief may be noticed thus : plaintiffs Bhikamchand and Ashok Kumar filed a suit for declaration and permanent injunction against the officials of the Gram Panchayat, Lohawat, Tehsil Phalodi; Zila Parishad, Jodhpur; Ramchandra and the present appellant Kesarimal, inter-alia, with the averments that the suit property situated in Chhipon Ka Bas, Vishnawas, Village Lohawat was owned/purchased by them and they had patta of the said land, which was purchased by them in public auction having Patta No.26, File No.27/89-90 dated 28.12.1990 in the name of Bhojraj Soni, which was purchased by the plaintiffs on 6.11.1992 by way of registered sale deed from said Bhojraj; on 19.1.1994, after obtaining permission from Gram Panchayat for construction of house, the suit property was encircled by stone slabs and was ad measuring 50' x 26'. It was then contended that defendant No.5 Ramchandra claims ownership of the Plot No.223 in the colony and that a Plot No.224 owned by father of defendants No.5 & 6 is situated in the same colony / plan. The patta in the name of defendant No.5 has been issued under File No.3/56-57 dated 26.3.1957 and Patta Bahi No.41, Sale deed dated 14.9.1958 the plot has been indicated as ad measuring 50' x 50' and does not indicate any road or lane on any side, no plot number is indicated in the sale deed / patta.

(3.) On the same day, another patta dated 12.6.1957 being Patta No.2 in the name of Babu Lal, Pukhraj, Ashkaran and Deepadan was issued being Plot No.222, however, neither the documents pertaining to Plot No.222 nor Plot No.224 indicates existence of any Plot No.223 and the boundaries of defendant No.5 sold and patta does not match. Another patta pertaining to Plot No.221 was issued indicating Plots No.222 and 224, however, there is no reference of Plot No.223 which indicates that the patta owned by defendant No.5 does not pertain to the said area. The defendant No.5 was harassing the plaintiffs and have been approaching various courts distressing the plaintiffs. The plaintiffs became aware about the status indicated in the plaint on getting information from the report prepared by the Development Officer defendant No.3 dated 18.7.2007, wherein it was clear that the defendants No.5 & 6 were wrongly harassing the plaintiffs; their plots were near Shyamji's temple, which has been trespassed by other persons.