MAHENDRA SHARMA Vs. DAYA RAM

JUDGEMENT

(1.) The present appeal under Section 96 of the Code of Civil Procedure, 1908 had been filed by the appellants-defendants No. 8, 10, 11, 12 and 15 feeling aggrieved of the judgment and decree dated 20. 04. 1985, whereby the learned District Judge, Balotra (hereinafter referred to as the 'Trial Court') decreed the suit filed by the plaintiff Deva Ram Chela Raja Ram. The suit aforesaid came to be filed by the Respondentplaintiff; inter alia, averring that he had purchased 10 bigha land of khasra No. 235 (old) of village Balotra, vide registered sale deed dated 27. 07. 1968 and was enjoying peaceful possession thereof; a road connecting Balotra and Samdari divided the said land of khasra No. 235 into two parts, on southern part, the plaintiff had constructed Rajaram Boarding House. It was also stated, that in the new settlement of Samvat 2032, the southern part of the land was shown to have been falling in khasra No. 558, while the northern part of the land, which is situated between the said Samdari-Balotra road and Samdari-Balotra railway line, became part of khasra No. 609. It has also been stated that the plaintiff had been enjoying peaceful possession over his land spread in khasra No. 558 and 609 until 17. 07. 1979, when as a result of the flood in Luni river, the entire area was submerged in 8 to 9 feet water and various persons, including defendants No. 1 to 7 and 9 to 16, took shelter on the plaintiff's open land in northern side of the road falling in khasra No. 609, as the same was at a higher gradient. According to the plaintiff, he had asked the defendants to leave the site when the water receded; but they refused to hand over the possession and rather constructed huts and baras etc.

(2.) Alleging that the defendants have illegally encroached upon 3900 sq. ft. land belonging to him, the plaintiff filed the suit in question for securing possession of the disputed land, while seeking to recover mesne profits from 17. 07. 1979 till the possession is recovered.

(3.) In response to the suit so fled, the defendants No. 2, 3, 4, 8, 10, 11, 12, 13 and 15 filed a joint written statement, inter alia, refuting the contents of the plaint, including plaintiff's title over the contentious land.