- (1.) This order of mine shall dispose of two regular second appeals i.e. Regular Second Appeal No. 2531 of 2015, filed by Bir Singh & Mahender Singh, defendants No.2 & 3 and Regular Second Appeal No. 3483 of 2015, filed by M/s Bharti Infratel Limited, defendant No.1 as both the appeals have arisen out of common judgment & decree dated 28.4.2015, passed by learned Additional District Judge, Bhiwani. For the purpose of adjudication, facts are being taken from Regular Second Appeal No. 2531 of 2015.
(2.) For the sake of convenience, parties are being referred to as per their status before the Court of first Instance. Relevant facts of the case that plaintiff-Shri Krishan Goshala, Siwani filed a suit for declaration to the effect that they are owner in possession of plot No. 360 Barka 1425 situated in the revenue estate Khera, Tehsil Siwani, District Bhiwani and defendant No.2-Bir Singh and defendant No.3-Mahender Singh have no concern with the same in any manner. Defendant No.1-M/s Bharti Infratel Limited entered into an agreement with defendants No.2 & 3 for installation of tower, though defendants No.2 & 3 have no right, title or interest in the suit property. As per plaintiff, Kishori Lal son of Ganga Ram was owner of the suit property and he had executed registered Will No. 60 dated 5.7.1960 in favour of plaintiff and as such plaintiff became owner in possession of the suit property after the death of Kishori Lal.
(3.) Defendants No.2 & 3 have no right, title or interest in the suit property but they entered into an agreement with defendant No.1 for taking on And Regular Second Appeal No. 3483 of 2015 (O&M) lease the suit property for installation of tower in the same, which is illegal, null and void and was not binding upon the plaintiff. Defendant No.1 contested the suit inter alia taking the plea that defendants No.2 & 3 are the owners of the suit land where defendant No.1 had installed the tower. The installation of tower is within "lal dora" of village Khera Dhulkot. Defendant No.1 sought legal opinion from counsel, who clarified vide his legal opinion-cum-search report dated 3.11.2007 that defendants No.2 & 3 are owners in possession of the plot in question. Sarpanch of the village has also certified that defendants No.2 & 3 are owners in possession of the suit land. Tehsildar Siwani also certified on 29.10.2007 accordingly and prayed that suit be dismissed.;