KISHANLAL Vs. KISTOORI

JUDGEMENT

(1.) THIS is a defendant's second appeal against the judgment of Civil judge, Merta, affirming the judgment of Munsif -Magistrate Merta in Civil suit No. 274 of 1966.

(2.) THE plaintiffs (respondent) filed the above suit against the defendants (appellants for injunction and possession on or about 15 -7 -60 stating that he and his brother own a pitta shud plot of land in Merta Road and its measurements are from North to South 60' and from East to West 43'. He averred that its patta was issued by the former Jagirdar of Merta Road (Phalodi) on 5 -4 -43 in the name of his father Kishna and the ancestor Chhoga and that on 6 -1 -57 he was granted permission to construct by the Gram Panchayat Merta Road. It was stated that he constructed four rooms upto 43' after leaving some land in the north and the rest of the land was lying open and there were four stones on the corners. It was alleged that the defendants (appellants) encroached upon 10' to 12' land belonging to him (plaintiff) in the North East corner by digging foundations inspite of opposition. The plaintiff therefore filed the aforesaid suit for restraining the defendants appellants for making any construction on his aforesaid land and the delivery of possession of the encroached land. The plaintiff stated that the (defendants) appellants encroached on his land referred to above on 14 -7 -66 and that gave him the cause of action for filing the above suit.

(3.) ON the aforesaid pleadings, the Munsif -Magistrate, Merta, framed as any as 8 issues. After recording the evidence of the parties the Munsif -Magistrate, decreed the suit of the plaintiff with costs and directed that the defendant should return the land measuring 13' x 9' by removing his construction thereon to the plaintiff and the defendants were further restrained from raising any construction on the aforesaid land of the plaintiff. The aforesaid decree was passed on 23 -12 -69. Feeling dissatisfied with it, the appellants filed an appeal, which was heard by the Civil Judge, Merta. The Civil Judge, Merta by his judgment dated 12 -12 -72 dismissed the appeal of the defendants and affirmed the decree of the Munsif Magistrate with costs.