Decided on July 30,2013

Avadhesh Pandey Appellant
Kripa Shankar Pandey Respondents


PRAFULLA C.PANT, J. - (1.) THIS appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 16.09.2009 passed by District Judge, Udham Singh Nagar in Civil appeal No.43 of 2008 whereby the said court has dismissed the appeal of the plaintiffs to the extent of the dismissal of the suit No.53 of 2006, by trial court [Civil Judge (Sr.Div.), Rudrapur, Udham Singh Nagar]. However, the decree passed by the trial court allowing the counter claim of the defendants has been set aside by lower Appellate court (District Judge, Udham Singh Nagar) and counter claim of defendants too has been rejected.
(2.) HEARD learned counsel for the parties and perused the lower court record. Brief facts of the case are that the plaintiffs instituted suit no.53 of 2006 with the pleadings that land measuring 0.190 Hect. of plot/khasra no.48A of village Bhamrola, TehsilKichcha, which is shown by letter ABCD in the plaint map alongwith its boundaries, is in occupation of plaintiffs. Relating to said land they are recorded in class 1B, in revenue record, and they (plaintiffs) are cultivating a part of it and in the rest house of plaintiffs is situated. Alleging that the defendants attempted to interfere in the peaceful possession of plaintiffs on 15.03.2006, relief of perpetual injunction was sought against them by plaintiffs. It is also stated in the plaint that plaintiffs' house consists of three rooms, kitchen, toilet and bathroom. It is also pleaded that there is a boring for the irrigation purposes over a part of the disputed land. The measurement of the disputed land are alleged to be 56ft x 200 ft. During the pendency of the suit, an amendment was sought on 22.03.2006 stating that defendants have encroached upon a part of the disputed land forcibly and raised boundary wall, as such the relief of mandatory injunction for removal the same was sought.
(3.) THE defendants contested the suit and filed their written statement paper no. 26A in which it is admitted that plot/khasra no.48 A measuring 0.190 Hect. of land is recorded in the name of plaintiffs in the revenue record over which they are in occupation for agricultural purposes. Rest of pleas of the plaint are not admitted. It is pleaded in the written statement that there is no demarcation of boundaries between land of village Bhamrola and that of Bhigwara and entire area is known as Ramnagar. It is also pleaded in the written statement that the house of the defendant no.1 is situated over the land in suit which is not shown by plaintiffs in their plaint map. It is also pleaded that family of the defendant no.1 is living for last 15 years in said house. A counter plea has been taken by defendant no.1 and it has been stated that plaintiffs in order to grab of land of defendant no.1 has filed the suit. In additional pleas, it has been pleaded that plaintiff no.1 is a man of criminal record. Counter claim has been made stating that plot no.449M, 48,73,72,46,60,61,74,332 and 353 of Ramnagar (consisting villages Bhamrola and Bhigwara) is spread out in 15 acres and most of such land has been given to the families of the Freedom Fighters. It is also alleged that defendant no.2 has been unnecessarily impleaded in the suit. In the counter claim, relief has been sought that of injunction restraining the plaintiffs from interfering in peaceful possession of defendant no.1 in respect of the house situated over the disputed land.;

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