Mohammad Rafiq, J. - (1.) THESE are two appeals. The first appeal bearing no. 92/2008 has been filed by appellant Shyam Sunder against the judgement of the learned Additional District Judge No. 2, Bharatpur who by his judgement dt. 8.8.2010 dismissed the appeal and upheld the judgement and decree passed by the Civil Judge (JD), Bharatpur dt. 8.8.2005. The second appeal bearing no. 17/2010 has been filed by appellant -Shyam Sunder, Rupesh and Gourav against the judgement dt. 8.8.2005 passed by the Additional District Judge No. 2, Bharatpur whereby the appeal of the respondent -Amar Chand was allowed and the decree passed by the trial Court dt. 8.8.2005 was set aside. Thus there as a contradiction in the judgments. The facts of appeal no. 92/2008 are taken for the convenience.
(2.) THE appellant filed a civil suit for perpetual injunction along with temporary injunction application pleading that he is in possession and ownership of the land measuring 12 feet, which he claimed to have purchased by registered sale deed dt. 26.5.1980. The defendant did not have any right or title over the plot and yet wants to raise construction on the plot by making encroachment on the appellants' plot. It was therefore prayed that the respondent -defendant may be restrained by issuance of perpetual injunction. The defendant in written statement claimed that the disputed plot was of his own. He has both title and possession over the disputed plot since 28.5.1980. He has constructed a garrage on that plot on the northern side and has fixed a door on its southern side. There is 12 feet wide way in between the plot of the defendant and the plaintiff. The plot number of the plaintiff was 52 whereas the defendant has two plots i.e. plot no. 45 and 46 and plot no. 51 was of Tilak Raj where he himself resides. It was therefore prayed that plaintiff may not be permitted to encroach upon the 12 feet wide way in between two plots.
(3.) THE learned trial Court after analysing the evidence of the parties concluded that in sale deed Ex.1 and the site plan Ex.2 enclosed therewith produced by the plaintiff, the plot in the northern side of the disputed land is said to be by one Amar Chand Salva whereas in southern side a public way has been shown. If all these documents which the plaintiff has produced are accepted, he has shown upto 12 feet towards northern side as his own, whereas clearly this land belongs to the defendants. Besides, the learned trial Court held that the plaintiff has also failed to prove that he was in possession of the disputed land, rather he is claiming that the defendant has encroached upon this land of 1.7.2000 during pendency of the suit. The learned trial Court held that the plaintiff brought in subsequent development on record to show as to in which part of the land, the defendant has encroached upon. The first appellate Court upheld that finding of the learned trial Court. It was observed by the first appellate Court that the plaintiff was claiming that he purchased the disputed plot in the land of Gram Panchayat Anah, whereas the land of Chitariya was situated 1 km from Anah. Ex.3 is a patta issued by Sarpanch of Gram Panchayat Malah, according to which a piece of land was sold to the plaintiff Shyam Sunder for Rs. 200, but this document is unregistered despite the sale being more than Rs. 100, therefore, cannot be read in evidence. Apart from that, this was a disputed land and does not indicate as to whom it belongs. There is only a way shown between plot no. 2 to plot no. 4.;