Jitendra Chauhan, J. - (1.) This judgment shall dispose of the above captioned two separate appeals filed by the plaintiff-appellants against judgment and decree dated 11.04.2013, passed by learned Additional District Judge, Faridabad (for brevity, 'the first appellate Court'), whereby, cross-appeals filed by the parties were disposed of; the appeal filed by the plaintiffs was dismissed whereas, the appeal filed by the defendants was allowed. The revenue authorities were directed by learned first appellate Court to enter the ownership of the canal constructed in Khewat/Kahtoni No. 348/334, 391, Killa No. 104/3/1 (0-16) in the name of Canal Department.
(2.) The brief facts necessary to dispose of the appeals are that the plaintiffs filed suit for mandatory injunction against the defendants directing them to put nala/rajwaha/Canal at the correct side as per their plan sanctioned by the Government and not to interfere in the peaceful possession of the plaintiffs over the land in dispute. It is the case of the plaintiffs that they are joint owners in exclusive possession of the suit property to the extent of half share. They inherited the suit property from their father and the land in question is ancestral. The plaintiffs have been cultivating the land in question since the time of their forefathers where they had raised temporary construction and a boundary wall. The said property had never been acquired by the defendants. Defendant Nos. 3 and 4 had demolished the said construction as was admitted by them in their reply to the legal notice dated 14.03.2006. It is pertinent to mention here that the plaintiffs had instituted the suit through Parmanand, who was son of plaintiff No. 1 and nephew of plaintiff No. 2. Subsequently, plaintiff No. 2 was substituted by his son, Chanderpal, and his grandson, Ashok Kumar. A demarcation had been conducted at the spot in the presence of defendant Nos.3 and 4 but they had denied the same and, therefore, Parmanand moved and application before Assistant Collector, II Grade, Ballabhgarh, for proper demarcation which was allowed vide order dated 12.05.2006. The demarcation was completed in the presence of concerned officials of the defendants and as per the report of demarcation, the land in dispute had never been acquired by the defendants and continues to be owned and possessed by the plaintiffs. However, defendant Nos. 1 and 2 had dug the land and defendant Nos. 3 and 4 had demolished the construction thereon. Hence, the suit.
(3.) Two sets of written statements were filed; one by defendant Nos. 1 and 2 and the other by defendant Nos. 3 and 4. The tone and tenor of both the written statements are similar. It was submitted by the defendants that the demarcation conducted by Bhim Singh, Kanungo, on 22.06.2006, was incorrect and the officials of the department had objected to it on the spot itself. The suit of the plaintiffs was clearly barred by limitation as the Ballabhgarh Distributary had been dug more than four decades earlier on the acquired land but no objection had ever been raised. The suit was thus, not maintainable. It was clarified that on 22.06.2006, when the demarcation was conducted by Bhim Singh, Kanungo, the land was not found to be owned by the plaintiffs. The canal had been dug at the acquired site. Merely because the report mentioned that the Government of Uttar Pradesh had never acquired the land did not imply that the plaintiffs were owners thereof. The plaintiffs were neither owners nor in possession of the suit property.;