RAM JEEVAN Vs. GENERAL MANAGER & ORS

JUDGEMENT

(1.) This second appeal at the behest of appellantplaintiff is laid under Section 100 C.P.C. to challenge the concurrent finding of facts recorded by both the Courts below. By the impugned judgment and decree dated 05.05.2007, learned Additional District Judge, Parbatsar (for short, 'learned Lower Appellate Court') has dismissed the appeal of the appellant by affirming the judgment and decree dated 04.02.2002 passed by Civil Judge (Jr. Div.) & Judicial Magistrate, First Class, Markrana, whereby appellant-plaintiff's suit for injunction was dismissed.

(2.) The bare necessary facts, for appreciating the lis involved in the matter, are that appellant filed a civil suit for injunction against respondents to challenge a notice dated 15.12.1994, whereby appellant was asked to remove his encroachment from the railway property. In the plaint, appellant, inter-alia, averred that at the disputed site a shop was constructed by his father and was handed over to him which is in his possession for last more than four decades and he is earning his livelihood by running grocery shop. To challenge the notice issued by respondents, appellant has pleaded that the respondents are having no right, title or interest over the property and as such, they are not authorized to interfere with his peaceful possession and remove his possession from the land in question. With these specific averments, aforementioned reliefs were sought.

(3.) The suit is contested by the respondents who in their return averred that appellant has wrongly asserted that he is in possession over the land for more than four decades. As per the version of the respondents, appellant has encroached over the land in recent past, i.e. in the year 1988, and thereafter made a Kacha construction over the land to give it shape of a shop. In their written statement, it is further averred that when the Railway Administration came to know about encroachment, appellant was asked to remove the same, thereupon he assured that he would remove the encroachment without any delay. Thereafter, despite repeated reminders when the appellant did not remove the encroachment and unauthorizedly raised Pacca construction at the site, a notice was given to remove encroachment and the entire unauthorized construction. While adverting to the affirmative assertion of the appellant that he is in possession, respondents have specifically pleaded that appellant is having no right, title or interest over the disputed land and he is simply an encroacher on the Railway property, therefore, liable to be removed from site. A specific objection is also raised that before filing the suit, requisite notice under Section 80 C.P.C. was not given to the Railway Administration by the appellant, therefore, suit is not maintainable.