RAMSWAROOP SHARMA Vs. SATISH KUMAR SAIN

JUDGEMENT

(1.) This writ petition has been filed by the petitioner aggrieved against order dt. 07.05.2015 passed by the trial Court, whereby, the application filed by the petitioner under Sec. 45 of the Evidence Act, 1872 ('the Act') has been rejected. The respondent -plaintiff filed a suit for possession and mandatory injunction against the petitioner -defendant regarding a plot situated at village Minda, Tehsil Nawa, District Nagaur with the averments that Patta pertaining to a plot stands in the name of his father Bheru Lal, which was transferred by him to Manju Devi on 27.05.2006 and petitioner purchased the same back from Manju Devi on 16.06.2010; the defendant -petitioner, who is Head Constable in Rajasthan Police has, by way of extending the room from the adjoining plot, trespassed on plaintiff's land and has opened ventilators on plaintiff's land and sought relief for possession and mandatory injunction.

(2.) During the pendency of the suit, the petitioner -defendant filed an application under Sec. 45 of the Act claiming that the construction was raised by the petitioner on foundation and plinth, which was existing for over 60 years and on account of seepage and drain water and old construction, the same became weak, therefore, while maintaining the foundation and plinth, the construction has taken place; the foundation and plinth was more than 60 years old having old stones and lime and, therefore, from the experts of the Forensic Science Laboratory ('FSL') the defendant wants to get examined the fact regarding the age of the foundation and the lime, which was necessary for final and complete adjudication of the dispute.

(3.) The application was opposed by the plaintiff.