- (1.) Heard Miss Abha Gupta, learned counsel for the appellants and Sri Manish Tandon, learned counsel for the respondents.
(2.) This second appeal has been filed by the defendant being aggrieved by the judgment dated 11.09.2019 and decree dated 20.09.2019 passed by the Additional District Judge, Court No. 23, Kanpur Nagar allowing the Civil Appeal No. 136 of 2014 and setting aside the judgment and decree dated 23.07.2014 passed by the Civil Judge (Senior Division), Kanpur Nagar in Suit No. 1284 of 2009.
(3.) Brief facts leading to the present appeal are that plaintiffs have filed a suit against the defendants for mandatory injunction and compensation on account of damages. It was alleged that the plaintiffs are the owner and title holder of property situated at Arazi No. 557-A and 558 measuring 1446 square yards situated at Village and Mauza Tatiya Chheda. According to the plaintiffs, their father had purchased said property through a registered sale deed dated 19.07.1963 and after purchase of such land, their father had constructed three temporary rooms and one permanent room over Arazi No. 558, rest of the land was open. Earlier their father was taking care of the said property but after death of their father, plaintiffs due to their pre-occupation in their business could not take care of the said property when one Shaym Lal tried to encroach upon some portion of the property. In 1988, plaintiffs had filed a suit against Shyam Lal and Kanpur Development Authority so also Nagar Nigam for injunction and it was registered as Case No. 827 of 1988. During the pendency of such case, Shyam Lal forcefully entered into those three temporary rooms and one permanently constructed room. Thereafter, plaintiffs have filed a suit against Shaym Lal wherein Appeal No. 128 of 2003, Court of A.D.J., Court No. 4, Kanpur vide order dated 24.09.2004 declared the plaintiffs to be the owner of the said property. Appeal filed in the High Court too was decided in favour of the plaintiffs and against Shyam Lal as can be seen from the order passed by the High Court on 12.07.2006. Thereafter, plaintiffs sought removal of the defendants and for this purpose they had furnished a legal notice dated 14.05.2009 through their counsel but despite service of notice on respondent no. 1, defendant no. 1 neither removed their encroachment nor returned the suit premises and therefore, a demand was made for payment of compensation @ Rs. 50/- per day .;