RAMPRASAD Vs. LRS OF LALCHAND

JUDGEMENT

(1.) The present civil second appeal under Sec. 100 of CPC has been filed by the defendants (hereinafter referred to as "the appellants") against the judgment and decree dtd. 5/5/2023 passed by learned Additional District Judge, Gulabpura, District Bhilwara (hereinafter referred to as the learned First Appellate Court") in Civil Appeal No.13/2011 whereby the learned First Appellate Court while dismissing the appeal preferred by the appellants affirmed the judgment and decree dtd. 31/5/2011 & amended decree dtd. 29/6/2011 passed by the learned Civil Judge (Senior Division), Gulabpura, District Bhilwara (hereinafter referred to as "the learned trial Court") in Civil Original Suit No.45/2005 whereby the learned trial Court decreed the suit preferred by the original plaintiff Lalchand under Order 7 Rule 1 and 2 of CPC seeking decree of declaration, injunction and possession against the defendents.

(2.) The facts in brief are that the original plaintiff Lalchand preferred the aforesaid suit stating therein that there is a plot admeasuring 45x50 sq. ft. situated in Gulabpura, Khatik Mohalla (hereinafter referred to as "the suit property") which was purchased by him from one Abdul Salam S/o Gheesa Ji on 19/4/84 for a consideration of Rs.15,000.00 and the said seller Abdul Salam also gave the possession of the suit property to the original plaintiff. It was claimed that after purchasing and getting the possession of the suit property, the plaintiff got a boundary wall constructed on the suit property and its gate was constructed at western Side. Further, it is submitted that the defendantappellant No.1 is an employee in the Rajasthan Police Department and was pressurizing him to sell the suit property to him or else he would take possession from him forcefully. It is submitted that the defendant No.1 had no legal right over the suit property. In the suit, it was further claimed that on 17/6/2005, the defendants while removing the locks put by the plaintiff, put their own locks on the suit property and forcefully took possession of the suit property. Therefore, the plaintiff preferred the suit seeking the aforesaid relief.

(3.) The defendant filed written statement to the suit and has also filed a counter claim. It was claimed that the plaintiff has not constructed the boundary wall over the suit property. The defendant No.3 Pokhar @ Parasram after putting sand got a wall of 6 ft. constructed over the boundary of the suit property. It was further stated that the plaintiff was never ever in possession of the suit property whereas it was the defendant No.3 who was using and occupying the suit property. It is submitted that the defendants are using and occupying the suit property since last 40 years peacefully and since the plaintiff is having no possession over the same, the suit is not maintainable. Further, it was submitted that the actual measurement of the suit property is 40x50 sq. feet and since the defendant No.3 is in adverse possession of the suit property since last 40 years, therefore, he has become the owner of the same. Therefore, it was claimed that by way of passing decree of permanent injunction and declaration, it may be ordered that the defendants are in ownership and possession of the suit property on the basis of adverse possession. Further, it was submitted that the plaintiff has not produced any patta of the suit property and the alleged seller Abdul Salam and his brother Ismail by using forged and fabricated documents have sold the suit property to the plaintiff. Thus, it was prayed that the suit preferred by the plaintiff may be rejected and the counter claim as filed by the defendants may be allowed and it may by declared that it is the defendant who is the owner of the suit property on the basis of adverse possession and the plaintiff be restrained from causing obstruction over the use and occupation of the suit property.