- (1.) THE appellate preferred under Section 96 of the Code of Civil Procedure, 1908, is directed against the judgment and de cree dated 27-02-1990, passed by the then District Judge, Tehri Garhwal, in Original Suit No. 37 of 1983, whereby the said trial court decreed the plaintiffs' suit for mandatory as well as the pro hibitory injunction.
(2.) HEARD learned counsel for the par ties and perused the entire lower court record. Brief facts giving rise to this ap peal are that the plaintiff/respondent instituted Suit No. 37 of 1983, before the District Judge, Tehri Garhwal with the pleadings that he is owner of the build ing known as 'old POWER HOUSE' and land appurtenant thereto situated in Narendra Nagar, shown in the plaint map. The said building and land in suit were declared to be owned by the plainiff by State of Uttar Pradesh vide its Government Order No. 30&-B/iii-37 F/58 dated 13-05-1960, as has been Lhown at SI. No. 20 of the 'properties of His Highness'. It is alleged in the plaint that the defendant No. 1 through its contrac tor (defendant No. 5) encroached upon the land in suit on 05-02-1983 and started constructions over ;t for the residence of defendants No. 2 and 3. The construc tions are shown by letter 'b' in the plaint map. It is pleaded that the plaintiff served a notice on the defendants-stop the constructions, as the defendants started not only constructing the 2 building at the place shown by letter 'b' but also de molishing the existing building, owned by the, in which the tenant? of the plaintiff were residing. It is prayed in the suit that the defendants be restrained from demolishing the property in suit and raising constructions over it. A further relief has been sought against the defend ants that they be directed to remove the constructions raised over the land in suit, restoring the land in suit to its original condition. Defendants No. 1 to 4 (appellants) contested the suit and filed their written statement. It is pleaded in the written statement that the plaintiff is not the owner of the property in suit. It is further pleaded that the answering defendants were given possession of the land on 02-05-1950, after the property of Raja Tehri merged with the State of Uttar Pradesh as per the agreement between the Gov ernment of India and the interim Gov ernment on 18-05-1949. Otherwise also, defendant No. 1 has acquired the title by way of adverse possession, as the defendant No. 1 continued in possession over the property in suit since 1950 to 1983. Alleged tenants Nand Bahadur, Pushpa and one Joshi were inducted by the plaintiff to show his ownership in the property in suit. It is further pleaded in the written statement that the suit is un der valued and the court fee paid is in sufficient Lastly, it is pleaded that the plaintiff has not come with the clean hands. The defendant No. 5 filed his sepa rate written statement and pleaded that he started constructions as per the con tract with defendant No. 1.
(3.) ON the basis of the pleadings of the parties, the trial court framed follow ing issues : 1. Whether, the plaintiff is owner of the disputed building, or not, if so, its effect ? 2. Whether, the court has jurisdic tion to hear the suit ? 3. Whether, the defendants have started new constructions after demolishing the disputed prop erty w. e. f. 05-02-1983 ? 4. Whether, the defendants are in adverse possession of the dis puted property, if so, its effect ? 5. Whether, the suit is under val ued? To what relief, is the plaintiff en titled? The trial court decided issued No. 2 as preliminary issue on 18-07-1987, hold ing that the trial court has jurisdiction to try the suit. As to the issue No. 5, the said issue was also decided as prelimi nary issue on 24-07-1987. Other issues were decided after recording full evidence and hearing the parties. The trial court has decided issues No. 1, 3, 4 and 6 in favour of the plaintiff and decreed the suit for prohibitory as well as mandatory injunction, as prayed in the plaint. By di recting that the defendants are restrained from encroaching upon, damaging the building or raising the constructions in the disputed property situated in Khasra No 518 shown by letters A, B, C, F in plaint map. Defendants are further directed to remove the constructions already raised and restore the condition of the land as it existed on 5th February 1983. Hence, this appeal by the defendants. 6. Following are the points of deter mination on the basis of the arguments advances on behalf of the parties, in this appeal : 1. Whether, the court below has erred in law in ignoring the plea of limitation raised by the defendants? 2. Whether, the suit for injunction was not maintainable without seeking relief for possession? 3. Whether, the property in suit was not identifiable and as such, the injunction could not have been granted? 4. Whether, the trial court has erred in appreciating the evidence on record and holding that the appellant is owner of the property in suit? Re : Point of determination No. 1 :;