- (1.) Plaintiffs/appellants are in second appeal against the judgements and decrees of the courts below whereby their suit for mandatory injunction was dismissed by the trial court and in appeal the findings of the learned trial court were upheld by the appellate court.Brief facts of the case are that plaintiffs/appellants filed a suit for mandatory injunction alleging therein that they were owners of land measuring 20 kanals 16 marlas bearing khasra no. 793/2 situated in the revenue estate of Village Jaitu, District Faridkot. There was a tale end of sewerage constructed by the Municipal Council, Jaitu beyond the khal and the sewerage was constructed on Kotkapura road Jaitu. There was no link between tale and sewerage. Land of the plaintiffs fell between these two ends. It was further alleged that defendants were also co-sharers to the extent of ten marlas and that defendants without the permission and consent of the plaintiffs or without acquiring the land constructed sewerage line from Kotkapura road to the tale end of sewerage, which was 20 feet wide, 565 feet long and 15 feet deep in khasra no. 793/2. It was alleged that the land occupied by the plaintiffs came to be 41.5 marlas and after deducting 10 marlas of land belonging to the defendants the remaining land belonged to the plaintiffs. It was alleged that the defendants were not entitled to construct the sewerage without the consent or without acquiring the land of the plaintiffs. It was alleged that the prevailing price in the year 1997 when the sewerage was completed was Rs. 16,000/- per marla and as such the price of the land of the plaintiffs came to Rs. 5,00,000/- and that defendants had neither paid the compensation nor removed the sewerage despite repeated requests. Hence the suit.
(2.) Upon notice private defendants 2 to 6 did not contest the suit and were proceeded against ex parte. Defendant no. 1-Municipal Council, Jaitu contested the suit by filing written statement stating therein that (i) the suit was time barred as sewerage was laid down in the year 1992-93 and the suit had been filed after lapse of more than nine years; (ii) the suit was also barred under Order 2 Rule 2 CPC as earlier also the plaintiffs filed a suit for recovery of Rs. 50,000/- as damages for loss of crops in respect of the suit land which was decreed for Rs. 35,000/- vide judgement and decree dated 23.2.1998. It was also alleged that the suit was bad for non-joinder of necessary parties as the other co-sharers have not been joined. On merits it was denied that the plaintiffs were owners of the suit land measuring 20 kanals 16 marlas bearing khasra no. 793/2. It was alleged that the answering defendant was also recorded as owner to the extent of 10/416 share of the land and as such the plaintiffs could not claim that they were owners of the suit land. It was further averred that at the time of filing of the suit none of the plaintiffs were recorded as owner of khasra number 793/2 and Pawan Kumar, Bimla Devi and Mahabir Parshad were recorded as owners as per jamabandi for the year 1999-2000. It was further the case of the defendants that the site where the sewerage has been laid there was a passage of six feet in width and land for this purpose was purchased from one Hardev Singh etc. Since the land width of 6 marlas was enough, so 10-1/2 marlas was purchased from one Tirath Ram vide sale deed dated 16.9.1980 and mutation thereof had been sanctioned in the name of the answering defendant-Municipal Council, Jaitu. It was then averred that to make the passage meet Kotkapura Bathinda road 3-1/2 marlas of land was purchased from Harbans Lal etc. (defendants 2 to 5) and they executed a writing in favour of the answering defendant dated 3.7.1996 and a sum of Rs. 61,600/- was paid to them. It was asserted that the sewerage line had been laid and path to disposal point has been constructed on the land owned and possessed by defendant and not on the land of the plaintiffs.
(3.) On the pleadings of the paties the following issues were framed:- 1.Whether the plaintiffs are entitled for mandatory injunction as prayed for?OPP. 2.Whether the suit is time barred as alleged?OPD 3.Whether the suit is barred under Order 2 Rule 2 CPC?OPD. 4.Whether the present suit is hit by the principal of res injunction as alleged?OPD. 5.Whether the plaintiffs are estopped by their own act and conduct to file the present suit as alleged?OPP. 6.Whether the suit is bad for non-joinder of necessary parties as allaged?OPD. 7.Relief.;