P.S.RANA, J. - (1.) REGULAR Second Appeal is filed under Section 100 of the Code of Civil Procedure by the appellant against the judgment and decree dated 5.2.2013 passed by learned District Judge Hamirpur H.P. in Civil Appeal No. 55 of 2010 titled Rattan Chand vs. Balwant Singh and others whereby learned District Judge Hamirpur affirmed the judgment and decree passed by learned trial Court passed after remand of civil suit.
(2.) BRIEF facts of the case as pleaded are that deceased Balwant Singh and Smt. Sansaro Devi plaintiffs filed a suit for fixation of boundaries by way of demarcation of land comprised in Khata No. 107 min Khatauni No. 129 min Khasra Nos. 598, 599 kita 2 area 2 canals 4 marlas as per jamabandi for the year 1995 -96 situated in Tika Anu Kalan Mauza Bajuri Tehsil and District Hamirpur with a consequential relief of permanent prohibitory injunction restraining the defendant from raising any construction or changing nature of land and also sought additional relief of possession by way of demolition of construction in case defendant succeed in raising construction over suit land or any part thereof during the pendency of suit. During the pendency of suit Balwant Singh died and his legal representatives brought on record. During the pendency of suit Smt. Sansaro Devi also died and name of Sansaro Devi was ordered to be deleted under Order 1 Rule 10 CPC vide order dated 22.6.1999. It is pleaded that deceased plaintiffs through their legal representatives are owners in possession of land comprised in Khata No. 107 min, Khatauni No. 129 min, Khasra No. 598, 599 measuring 2 canals 4 marlas situated in Anu Kalan, Mauza Bajuri Tehsil and District Hamirpur. It is further pleaded that there are other co -sharers in the suit land but they have not been impleaded as parties and further pleaded that plaintiffs did not deny their right title or interest in the suit land. It is pleaded that no relief is claimed against other co -sharers and it is also pleaded that present suit is filed for their benefit also. It is pleaded that defendant is stranger to the suit land and he has got no right title or interest in or over the suit land. It is pleaded that land of defendant is adjoining to the suit land and defendant had started digging the suit land and has uprooted the boundary and is threatening to raise forcible construction over the suit land and also threatened to dispossess the plaintiffs from the suit land. It is pleaded that plaintiffs requested the defendant on a number of time not to raise construction over the suit land but of no use. Prayer for decree the suit as mentioned in relief clause sought.
(3.) PER contra written statement filed on behalf of defendant pleaded therein that plaintiffs have no cause of action and further pleaded that other co -sharers are necessary parties. It is pleaded that defendant wanted to raise retaining wall in order to protect his immovable property and plaintiffs are creating interference over the land of the defendant. It is pleaded that defendant has already filed suit against the plaintiffs and present suit is a counter blast to that suit. It is pleaded that defendant is not raising any construction over the suit land. It is also pleaded that defendant is not interfering over the suit land in any manner and suit has been filed with a malafide intention. Prayer for dismissal of suit sought. Plaintiff filed replication and reiterated his pleadings pleaded in the plaint. As per the pleadings of parties learned trial Court framed following issues on dated 15.6.2002: - 1. W hether the plaintiff is entitled for the relief of fixation of boundaries by demarcation as alleged? OPP 2. W hether the plaintiff is entitled for the decree of permanent prohibitory injunction as prayed for? OPP 3. W hether the plaintiff is entitled for the decree of possession by demolition as prayed? OPP 4. W hether the plaintiff has no cause of action as alleged?....OPD 5. W hether the suit is bad for non -joinder of necessary parties as alleged? ..OPD 6. Relief. ;