- (1.) Defendants/appellants are in second appeal against the judgments and decrees of the Courts below whereby the suit for possession filed by respondent/plaintiff was decreed by the trial Court and the appeal filed by defendants/appellants was dismissed by the learned Appellate Court.
(2.) Facts necessary for the decision of the present appeal are that the respondent/plaintiff filed a suit for possession alleging therein that he was owner in possession of plot bearing Khasra No.1267(as per settlement of 1879) marked by letter CDEF as shown in the site plan attached with the plaint. It was alleged that earlier the suit property was in possession of one Kewal who had inherited the same from his ancestors. It was further alleged that plaintiff purchased 245/495 share out of the said plot vide sale deed dated 19.10.1995 from Sant Ram and later on the plaintiff/respondent also got the remaining portion of the said plot vide registered exchange deed dated 26.03.1987 and thus he became exclusive owner in possession of the said plot. It was alleged by the plaintiff that in the month of September 2002 defendant constructed a wall at point AB in his absence and encroached upon portion marked by alphabets ABCD out of the aforesaid plot no.1267, which the defendants adjusted with their plot no.1268 situated adjacent towards southern side of plot no.1267. It was thus alleged that defendants got the possession of the portion in dispute in an unauthorised and illegal manner and as such the plaintiff was entitled to get back the possession of the portion in dispute.
(3.) Upon notice of the suit defendants filed their joint written statement taking various preliminary objections. On merits it was alleged that the site plan and the boundaries shown by the plaintiff/respondent were not according to Aksh-Shizra of 1879 and that portion in dispute was part and parcel of the plot bearing Khasra No.1268 and therefore question of encroachment as alleged by the plaintiff did not arise at all. It was further denied that petitioner was owner of plot no.1267 or that defendants ever constructed any wall in plot no.1267. It was asserted that the construction over the portion in dispute had been raised by the forefathers of the defendants/appellants. Plaintiff filed replication denying the averments made in the written statement and reiterated his version made in plaint. On the pleadings of the parties issues were framed, both sides led evidence in support of their respective pleas and the learned trial Court after hearing both sides and perusing the documentary/oral evidence available on record decreed the suit of the plaintiff vide impugned judgment and decree dated 23.03.2010. Aggrieved against the same defendants/appellants filed an appeal which was dismissed by the learned District Judge vide judgment and decree dated 17.11.2011. Hence the present second appeal. Learned Counsel for the defendants/appellants has argued that the findings of both the Courts below is based on misreading of evidence available on record and hence liable to be set aside. It is further submitted that both the Courts below below have erred in attaching presumption of truth to the report of local commissioner appointed by the trial Court. After hearing the learned Counsel for the appellants/defendants, I find no merit in the submissions made before me and the same are liable to be rejected.;