Decided on February 18,2005

Vishwanath Prasad Sinha Respondents


- (1.) THE instant second appeal has been preferred by the appellant/ defendant against the judgment and decree dated 09-08-2004 passed by the District Judge, Bilaspur in M.J.C.No. 29/2004 and by which the appeal against the judgment and decree dated 15-12-2003 passed in Civil suit No. 20-A/1996 by Civil Judge, Class-I, Bilaspur has been dismissed on the ground that the appeal preferred by the appellant was barred by law of limitation.
(2.) THE parties hereinafter shall be described as they were described before the trial Court. The case of the plaintiff before the trial Court was that he is the owner of the suit property described in the map attached with the plaint which he purchased on 26-11.1980 for a consideration of Rs. 21,000/- in the name of his wife i.e. plaintiff No.2 and he is in possession of the suit property. However, the defendant had encroached upon some portion of the suit property which is marked with red ink, by construction of a slab over the same and has threatened to block the drainage if the plaintiff dared to oppose his illegal act. Thus, the above suit has been filed for vacant possession of the suit land, declaration and perpetual injunction against the blockage of the drain.
(3.) THE defendant in his written statement did not specifically denied the ownership of the property and even he did not categorically denied the contents as alleged in paragraph -3 of the plaint. However, he denied that he had encroached upon any part of the land of the plaintiff or blocked the drain of the plaintiff. He submitted that he is in possession of his ancestral property. The defendant further stated that he was in possession of the suit property since his birth. On the basis of the pleadings of the respective parties, the Court below framed issues and after recording the statements of, PW-1, Awadesh Kumar; plaintiff/PW-2, Vishanath Pratap Sinha, DW-1 Subhash Verma, and DW-2 Vishnu Yadav, decreed the suit. The finding of the trial Court was that the plaintiff No.2, is the owner of the suit property which was purchased by registered sale deed on 26-11-1980 and the portion described by red ink in the part of the property which was purchased by the plaintiff as such, the plaintiffs are entitled for the declaration of title. It has been further held that on the disputed portion of the property, the defendant had encroached by casting a slab and the suit was decreed accordingly and the decree for perpetual injunction was granted in favour of the plaintiff No.2 against the defendant holding that the defendant shall not interfere with the possession of the plaintiff over the suit land and after demolition of the constructed portion, the suit land be handed over to plaintiff No. 2.;

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