- (1.) Suit filed by the plaintiff was decreed by the trial Court vide judgment and decree dated 27.01.2012. Appeal preferred against the said decree failed and was, accordingly, dismissed on 07.03.2013. This is how, defendant No.1 is before this Court, in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.
(2.) In short, plaintiff (Bishamber Dayal) claimed a decree for possession with consequential relief of mandatory injunction that the encroachment over the plot in question, measuring 0 kanal 5 marlas, comprised in Khewat No. 249, Khatoni No.266, situated in Village Mewka, Tehsil and District Gurgaon be removed and defendants No.2 and 3, who had illegally trespassed into the vacant area of Plot No.84, be ordered to hand over the possession to the plaintiff. It was averred that plaintiff happened to be owner of land measuring 5 marlas, situated in Village Mewka, pursuant to a sale deed dated 10.08.2004, executed by Sardar, Anwar and Akhtar sons of Badlu. At that time, the said plot was vacant. Subsequently, on a demarcation that was carried out at the instance of the plaintiff, it was found that a Harijan Chaupal, measuring 27.5 feet x 37.5 feet was erected in Khasra No.84. Remaining land was alleged to be in unauthorised possession of Rattan Singh and Karan Singh sons of Ami Lal. As despite requests, defendants failed to remove the encroachment, thus, the suit.
(3.) In defence, defendant No.1 maintained that as there was no Chaupal for Scheduled Castes and Backward Classes in Village Mewka, therefore, in the year 1980, Badlu father of Sardar, Anwar and Akhtar, came forward and offered Plot No.84, for construction of a Chaupal. Money collected by the villagers was utilized for construction. Villagers were assured by Badlu to get the gift deed registered in their favour over the suit land. Chaupal was constructed and completed in the presence of Badlu and the then Deputy Speaker, Haryana inaugurated the same in a public meeting in the year 1981. However, subsequently, Badlu died without making any gift deed as regards the suit land and his sons sold the same to the plaintiff in the year 2004. It was pleaded that defendant No.1 had become owner of the plot in question on account of having constructed a Chaupal and the same was being used by the villagers for common purposes. Trial Court, on a consideration of the matter in issue and the evidence on record, found that plaintiff was claiming title qua the suit property on the basis of sale deed dated 10.08.2004 (Exhibit P1), executed by Sardar, Anwar and Akhtar sons of Badlu. Jamabandi for the year 2002-03 proved that Sardar, Anwar and Akhtar sons of Badlu were owners in possession of Khasra No.84(0-5). Accordingly, vide mutation No.1139 (Exhibit P2), suit land was mutated in favour of plaintiff. Further, demarcation report (Exhibit P6) showed that the land in dispute, to the extent of 27.5 feet x 37.5 feet i.e. 7 karams x 7 karams and 5 karams x 5 karams, was in possession of Harijan Chaupal, whereas, the remaining 1 marla land was in possession of Rattan Singh and Karan Singh. Defendants failed to show their ownership qua Khasra No.84. They further failed to prove that the disputed land was, indeed, donated by Badlu. Resolutions (Exhibits DW1/2, DW1/3 and DW1/4) did not substantiate this position. Further, nothing was recited in the said resolutions that Badlu ever agreed or offered to donate or actually donated the land in dispute for its usage as Harijan Chaupal. Further, defendants even failed to show that Badlu was alive in the year 1980-81. Plaintiff examined Anwar son of Badlu (PW-1), who deposed that his father died in the year 1974. His death certificate was placed on record as Mark 'A', that reflected his date of death as 10.03.1974. It was observed that once Badlu had expired in the year 1974, there was no occasion to have donated the suit land for Harijan Chaupal in the year 1980-81. Accordingly, it was concluded that the stand set out by the defendants that the suit land was donated by Badlu, stood falsified. Further, no plea of adverse possession was set up by the defendants in the written statement. As defendants No.2 and 3 did not opt to contest the suit, they were proceeded against ex-parte. Still further, it was found that nothing was brought on record by the defendants to show that the matter as regards donation of land by Badlu was brought to the knowledge of the concerned department. Director, Panchayats had not given any sanction to the Gram Panchayat to raise any construction of any sort on the disputed land by spending Panchayat funds. That being so, plaintiff being the owner on the basis of sale deed (Exhibit P1), was entitled to possession of the disputed property. Accordingly, the suit was dismissed. Being dis-satisfied with the said decree, defendant No.1 preferred an appeal. Ist Appellate Court, reviewed the matter in issue, evidence on record and, on an analysis thereof, found itself in concurrence with the view drawn by the trial Court and findings recorded in support thereof. Accordingly, the appeal was dismissed. I have heard the learned counsel for the appellant at length and perused the R.S.A. paper book.;