NARESH KUMAR AND OTHERS Vs. CHUNI LAL

JUDGEMENT

(1.) The present Regular Second Appeal under Section 100 of the Code of Civil Procedure is maintained by the appellants against the judgment and decree dated 9.12.2005, passed by the learned Additional District Judge, Mandi, in Civil Appeal No.71 of 2003, whereby the learned Appellate Court has affirmed the judgment and decree passed by learned Civil Judge (Junior Division), Karsog, District Mandi, in Civil Suit No.123 of 2001, dated 5.3.2003.

(2.) Briefly stating facts giving rise to the present appeal are that respondent/plaintiff (hereinafter referred to as 'the plaintiff') filed a suit for possession against the appellants/defendants (hereinafter referred to as 'the defendant') on the allegations that he is owner-in- possession of land comprised in Khata/Khatauni No.118/172, Khasra No.420 and 421 measuring 0-2-4 bighas situated in Mauja Karsog, District Mandi, H.P. Earlier, he had filed a suit for permanent prohibitory and mandatory injunction, in the year 1996 and the same was decided on 22.12.1999, as per which, the same was partly decreed for permanent prohibitory injunction, but relief of mandatory injunction was denied to him. As per the plaintiff, he is permanent resident of Pangna, which is about 30 KM from Tehsil Head Quarter, Karsog. Defendant No.1 taking advantage of his absence raised construction in the form of latrine over Khasra No.421 measuring 0-0-10 bighas, which act on his part was highly illegal and wrongful. Khasra No.420/1 measuring 0-0-8 bighas, defendants No.2 & 3 had kept wooden shuttering after the decision of earlier suit. Although, he had requested the defendants to remove the shuttering from Khasra No.420/1, but they started making lame excuses. Since, he is rightful owner of the suit land, he is legally entitled to recover it possession from the defendant. The cause of action accrued on 22.12.1999, when his earlier suit, was partly decreed and on 28.1.2001, when defendants No.2 & 3 kept wooden shuttering over part of the suit land i.e. Khasra No.420/1 and on 22.8.2001, when the defendants finally refused to deliver the possession of the suit land to him.

(3.) The suit was resisted and contested by raising preliminary objections qua limitation, estoppel, locus standi, valuation and barred under Order 2 Rule CPC. It is contended that previously Mohan, Kanshi Ram and Amar Nath were owners of the suit land, which was already in possession of their (defendant's) father and this fact was well within the knowledge of the plaintiff, when he had purchased the land comprising in Khasra Nos.421 and 420 from the previous owner. It was further contended that when the plaintiff had filed a previous suit, at that time, they had already constructed latrine over Khasra No.421 and had been using land bearing Khasra No.420/1, for stacking of wood material etc. The latrine was constructed in the year 1984 and at that time neither previous owner nor the plaintiff had raised any objection. Their possession over the suit land remained quite open, peaceful, continuous, uninterrupted, hostile and notorious to the knowledge of the plaintiff and previous owners since July, 1984 and they did not take any steps to get back the same. In these circumstances, their possession had ripened into absolute title in the month of July, 1996 by virtue of adverse possession. Thus, all right, title and interest of the plaintiff over the suit land stood lost and extinguished in their favour. Since at the time of filing of previous suit, the plaintiff was aware about their possession over the suit land and no relief for possession was claimed. By filing replication, the plaintiff has reasserted and reaffirmed his own allegations by denying those of defendants. It was specifically averred that latrine over Khasra No.421 was constructed by the defendants during the pendency of earlier suit i.e. after 3.3.1997, when they took forcible possession of the same. As far as Khasra No.420/1 is concerned, they kept shuttering over it on 22.12.1999.