Prafulla C. Pant, J. - (1.)THIS appeal, preferred under Section 100 of the Code of Civil Procedure, 1908, (herein after referred as Code of Civil Procedure ) is directed against the judgment and decree dated 25 -01 -1985, passed by Additional District Judge, Saharanpur, in civil appeal No. 323 of 1980, whereby judgment and decree dated 21 -08 -1980, passed in original suit No. 179 of 1973, by trial court (Civil Judge, Roorkee) is set aside and the suit is dismissed. (Earlier Tehsil -Roorkee was part of District Saharanpur).
(2.)HEARD learned Counsel for the parties and perused the lower court record.
Brief facts of the case are that in earlier round of litigation, a suit No. 30 of 1969, was instituted by the Plaintiffs before Munsif, Roorkee, against the Defendants but the plaint in said suit was returned to the Plaintiffs on the ground that the suit was beyond pecuniary jurisdiction of said court. Thereafter another suit No. 15 of 1971, was instituted by the Plaintiffs for mandatory injunction against the Defendants directing them to remove 'MALWA' (building material) from the disputed land. The said suit was dismissed in default of the Plaintiffs. On the application of Plaintiffs for restoration, suit No 15 of 1971, was directed to be restored on payment of Rs. 75/ - as costs to the Defendants. It appears that Plaintiffs filed a revision against the imposition of costs of Rs. 75/ -, which was reduced by the revisional court to Rs. 50/ -. But it appears that even that cost of Rs. 50/ - was not paid and the suit No. 15 of 1971, stood dismissed. Plaintiffs' case is that meanwhile a panchayat was held in the village and a compromise was arrived at whereby Plaintiffs were directed to pay Rs. 500/ - to the Defendants whereafter the Defendants were required to remove their 'MALWA' (building material) within a period of 5 -6 months from the land in dispute. Finally original suit No. 179 of 1973, is instituted by the Plaintiffs as Forma Pauperis against the Defendants again for mandatory injunction, directing the Defendants to remove 'MALWA' (building material) from the land in suit shown by the letters ABCD in the present plaint map, situated in Village Ahmadpur Kadach, Pargana -Jwalapur, Tehsil Roorkee with the pleading that the Plaintiffs are owners of the land and the Defendants have failed to remove the 'MALWA from the land in suit even after receiving Rs. 500/ - from the Plaintiffs, as directed by the panchayat. During the pendency of the suit, an alternative relief was sought for delivery of possession of land to the Plaintiffs.

(3.)THE Defendants (present Respondents No. 1 to 5) contested the suit and denied the allegations contained in the plaint. However, it is admitted in the written statement by the Defendants that earlier suit No. 30 of 1969, was instituted by the Plaintiffs in respect of same land in which plaint was returned to the Plaintiffs on the ground that the valuation of suit was beyond the pecuniary jurisdiction of Munsif Roorkee. It is also admitted by the Defendants that thereafter Plaintiffs instituted suit No. 15 of 1971, before Civil Judge, Roorkee and said suit was dismissed in default of the Plaintiffs. It is further admitted that on application of the Plaintiffs, the restoration of suit was directed on the condition that the Plaintiffs would pay Rs. 75/ - as costs to the Defendants. It is also admitted that Plaintiffs preferred revision against the imposition of costs and the revisional court reduced the costs to Rs. 50/ - only, but the same also remained unpaid. Hence suit No. 15 of 1971 remained dismissed. As to the rest of contents in the plaint, the same are denied. In the additional pleas, the Defendants pleaded that it is wrong to say that the Plaintiffs are owners in possession of the land in suit. It is further pleaded that in fact the land in suit was a khudkast land of the Defendants over which the Defendants established their abadi since March, 1968. It is alleged that the foundation was laid in March 1968, and the walls were raised between March 1968 and July 1968. Denying that in the panchayat, it was agreed that on payment of Rs. 500/ - by the Plaintiffs to the Defendants, they were required to remove the construction, it is stated that neither such agreement was arrived at nor any payment was made. It is also pleaded that the suit is barred by time. It is further pleaded that suit is barred by Section 38 and 41 of Specific Relief Act, 1963.
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