MOHAN SINGH Vs. BHIKHAM RAM AND OTHERS

JUDGEMENT

(1.) This appeal is directed against the judgment, decree dated 8.8.2006 passed by learned Presiding Officer, Fast Track Court, Mandi in Civil Appeal Nos.43/2003, 55/2005, affirming judgment decree dated 27.3.2003 passed by learned Sub Judge Ist Class, Court No.1, Mandi in Civil Suit No. 92-1/2001. The plaintiff is the appellant.

(2.) The pleaded case of the appellant is that he is owner in possession of land comprised in khewat khatauni No. 17 min/35, khasra No.920/493, measuring 0-13-13 bighas, situated in Mohal Dhaniyara, Illaqua Tungal, Tehsil Sadar (for short land in dispute) as per jamabandi for the year 1999-2000. The respondents have no right, title or interest over the land in dispute. They started digging the said land for the purposes of construction. The appellant requested the respondents not to dig or raise construction over the land in dispute but without any positive response. The appellant applied to Naib Tehsildar, Kotli for spot inspection and for issuing tatima. The Naib Tehsildar visited the spot on 26.7.2001 and found that respondents had dug land measuring 0-0-10 bighas shown in the spot map as khasra No.920/493/1 (for short suit land). The respondents started construction over khasra No.920/493/1 without the consent and permission of the appellant. In these circumstances, the appellant had filed the suit for permanent prohibitory injunction and mandatory injunction directing the respondents to remove construction raised by them over khasra No.920/493/1, measuring 0- 0-10 bighas and for restoration of the land to its original position.

(3.) The suit was contested by respondents No.1 to 6 by filing written statement, in which preliminary objections; lack of cause of action and suit based upon falsehood have been taken . On merits, it has been pleaded that the Naib Tehsildar, Kotli did not visit the spot on 26.7.2001 and no measurements were taken in presence of respondents, who were not given any notice by Naib Tehsildar. The spot map prepared by Naib Tehsildar was wrong and illegal. It has further been pleaded that on Dharampur road about 40 years ago respondent No.1 with the help of his grand father alongwith his wife Smt. Purvu Devi had constructed a house. After the dissolution of marriage between Smt. Purvu Devi and respondent No.1. Smt. Purvu Devi is residing and occupying the house in question. The land where the house was constructed is owned by State of Himachal Pradesh but after the construction of the house Smt. Purvu Devi has become owner of that land. It has also been pleaded that Smt. Purvu Devi alongwith respondent No.1 are in possession of the suit land for the last over 40 years continuously, peacefully and without any interruption and they have acquired title of the suit land by way of adverse possession. The respondents denied the claim of the appellant.