S.S.SARON,J. - (1.) This Regular Second Appeal has been filed by the defendant-appellant Jagir Singh against the judgment and decree dated 23.8.1990 passed by the learned Additional District Judge Ropar whereby the appeal filed by the plaintiffs/respondents against the judgment and decree dated 17.2.1988 passed by the learned Sub Judge 1st Class Kharar has been accepted and the judgment of the trial Court has been set aside. The defendant-appellant Jagir Singh who filed this appeal for setting aside the judgment and decree of the learned Additional District Judge Ropar died during the pendency of the appeal and his LRs were impleaded in his place on 20.3.2001.
(2.) The plaintiffs-Gurdial Singh and others filed a suit for permanent injunction for restraining the defendants from taking forcible possession by encroaching upon the land which was being used as common site 'ABCD' including a well as detailed in the head note of the plaint. It is alleged that the suit property is owned and possessed by the Mazhbi community from time immemorial of village Batta. Since the members of the village community were huge in number and all of them could not be joined the suit was filed in a representative capacity in terms of Order 1 Rule 8 of the CPC (CPC - for short) on behalf of the village community. It is alleged that Jagir Singh (defendant No. 1) and Surjit Singh (defendant No. 2) who are also Mazhbi Sikhs had revolted against the village community and with their help defendants No. 2 and 3 want to demolish the wall 'AD' in order to usurp the site 'ABCD' with their site or they want to open a door through the wall 'AD' in order to encroach upon the site in dispute and to put the same to their exclusive use. it is further alleged that the wall 'AD' was constructed by the village Mazhbi Sikh community about 15 years back to safeguard the proper user of the site in dispute. Of late the wall had cracked down and feeling that the present site is just adjoining to the site of the defendants No. 2 and 3 they have felt allured and under that greed they want to usurp the said site and annex it with their own site.
(3.) On notice the defendants filed their statement in which it is stated that the site plan was wrong. Besides the plaintiffs, were not the sole owners of the suit property. The actual length and breadth of the site has also not been given. It is also alleged that defendant No. 1 is the owner in possession of the suit property as held by the Sub Judge 1st Class Kharar on 9.12.1985. The plaintiffs, it is alleged have got no concern with the suit land. The Khata of the suit land is common. Besides an objection with regard to the maintainability of the suit under Order 1 Rule 8 C.P.C. has been taken. It is alleged that Bishan Singh the maternal grandfather of defendants No. 1 and 2 was the owner of 1/2 share of the entire vacant site jointly owned and possessed by the community of Mazhbi Sikhs of village Batta. The defendants No. 1 and 2 were born in the said village and are residing in the village since birth and brought up and married by their maternal grandfather. The defendants No. 1 and 2 succeeded to the property of Bishan Singh and now they have been using the same as owners by tethering their cattle and putting their cots. In the year 1970 the dispute with respect to the property was decided in favour of Jagir Singh (defendant No. 1). The vacant site it is stated was purchased by Gurmit Singh and Avtar Singh. It is alleged that the plaintiffs, are headstrong persons and the parties were sent up for security proceedings which were pending for 14.10.1986 in the Court of S.D.M. Kharar. It is further stated that in fact the plaintiffs, want to encroach upon a part of the common site in dispute to which they have got absolutely no right whatsoever. It is also sated that the defendants have absolutely no intention of making any encroachment over the site in dispute as alleged because defendants No. 1 and 2 are already in 1/2 share of the suit land as owners in possession. They are within their right in not allowing the plaintiffs, to encroach upon in the areas which is their own. However it is stated that the plaintiffs, are at liberty to encroach in their own limit only and not in the area of the defendants. The wall, it is stated, has not cracked down the site is not adjoining to the site of defendants No. 2 and 3 and it has not been stated as to how and in which way the defendants were interfering in the affairs of the plaintiffs. Replication was filed by the plaintiffs, in which the averments made in the plaint have been reasserted and those made in the written statement have been denied. On the basis of the pleadings of the parties the learned trial Court framed the following issues: 1. Whether suit property is owned and possessed by community of Majbi Sikhs of the village Batta as alleged? OPP 2. If issue No. 1 is proved whether plaintiffs are entitled to the injunction prayed for? OPP 3. What is the effect of the judgment dated 9.12.1985 recorded by Sub Judge 1st Class Kharar? OP Parties. 4. Whether suit in the present form is not maintainable? OPP 5. Whether plaintiffs by their act and conduct are estopped from filing the suit? OPD 6. Whether plaintiffs have no locus standi to file the suit? OPP 7. Whether suit is barred by principles of resjudicata? OPP 8. Whether defendants are entitled to special costs if so to what extent? OPD 9. Relief. ;