- (1.) THIS Civil Second Appeal arises out of the judgment and decree of District Judge, Kathua, dated 31st of March, 1988, passed in Civil Appeal No. 45 of 1983, titled Madan Gopal and others Vs. Gur Dei and others. The facts relevant for the disposal of the present appeal are as under:
(2.) THE dispute between the parties is over a piece of abadi deh land situate in Taraf Tajwal, Tehsil Kathua. The land belonged to one Kanshi Ram. Kanshi Ram had three sons namely Nathu Ram, Ram Rattan and Munshi Ram. On Kanshi Rams death the land devolved upon his sons. Nathu Ram and Munshi Ram too have died. Nathu Rams son namely, Madan Gopal filed a suit for permanent injunction against his uncle Ram Rattan (D -l) and his cousins namely Tilak Ram (D -2) Kapil Dev (D -3) and Pushpa (D -4), children of Munshi Ram. He alleged that he and defendants -1 to 4 were the owners of Abadi deh land under Khasra No. 119 and 120 situate in Taraf Tajwal, Kathua. The land had an entrance and passage at Point CB shown in the sketch plan appended with the plaint. Plaintiffs grievance was that defendant -1, who is co -sharer in the land in dispute along with plaintiff and defendants 2 to 4, was proposing to build shops on the land marked 4CB. He has allowed defendant -5 namely Gur Prakash to install a sawing machine and electric power was being requisitioned to work it at spot market A shown in the site plan, which action, according to the plaintiff, was illegal being against the wishes of other co -sharers. The plaintiff further alleged that defendant -1 had no right to alter the position on spot by constructing shops or raising other structures on spot CB and allowing defendant -5 to work and install sawing machine on the suit land. After some time the plaintiff filed another civil suit against the defendants on the same subject matter. The second suit was filed by the plaintiff seeking permanent injunction restraining the defendants from changing the nature of the suit land or raising any construction or transferring the same to the detriment of the plaintiff.
(3.) THE plaintiff, thus contended that defendant -1, Ram Rattan was blocking the passage to the property at point market "CB shown in the site plan annexed with the plaint and was going to raise construction on the land. He, therefore, prayed for a decree of permanent injunction restraining the defendants from blocking the passage and also restraining him from installing a Saw Machine on the land. Defendants resisted the plaintiffs suits on the ground that he had no locus stand to file it, as he was not in possession of the property in dispute. According to them, the defendants and his sons were the owners of the land as they were in possession of it for more than 12 years. Defendant -5 alleged that he had taken the premises on rent @ Rs. 100 per month under a Rent Deed executed on 13th of May, 1968 and since then he is running his business on the land.;