- (1.) THIS second appeal under Section 100 CPC is directed against judgment and decree dated 22.09.2012 passed by Additional District Judge No.1, Jodhpur Metropolitan, whereby, the appeal filed by the appellants against judgment and decree dated 02.08.2008 passed by Additional Civil Judge (Senior Division) No.3, Jodhpur has been upheld.
(2.) THE facts in brief may be noticed thus : the plaintiffs ­ wife and sons of late Shri Binja Ram filed a suit for possession and damages against Govind Ram on 28.04.1997 with the averments that the suit property belonging to plaintiffs situated at Lajpat Rai Colony, Jodhpur, a plot was allotted by Urban Improvement Trust, Jodhpur ('the U.I.T.') on 23.08.1969 to late Shri Binja Ram; he deposited the amount of allotment whereon; the U.I.T. issued licence dated 18.12.1973 and since then the plaintiffs became owner and possessed the said plot; as Binja Ram died at young age, no permanent construction could take place, however, the plot was being used for storing house hold goods and on social occasions; it was claimed that in the year 1996 Govind Ram trespassed on the said plot after breaking locks, regarding which, report was lodged with the police, however, of no consequence and, as such, the defendant/s were in possession as trespassers; the defendants have no right or title regarding the said property; the plaintiffs were in possession; damages were claimed @ Rs.300/ - per month and injunction was sought restraining the defendants from raising construction. A written statement was filed by the defendants and the averments made in the plaint were denied; it was claimed that the suit property did not belong to the plaintiffs; a plot was allotted by U.I.T. and licence was issued to Binja Ram, however, Binja Ram sold the said plot on 03.08.1978 and received consideration of Rs.4,000/ - and executed agreement on 03.08.1978 and handed over possession of the said plot and since then the defendants were in possession of the suit plot; the plaintiffs were minor at the relevant time and, therefore, on their behalf their natural guardians mother and father placed thumb impressions; defendants constructed a room on the plot in 1996 and the averments regarding trespass in 1996 are incorrect; the plot was being used by the defendants since 03.08.1978; the report lodged with the police was false and, therefore, the police did not act on it; the plaintiffs were not entitled for any damages.
(3.) IN additional pleas, it was stated that the defendants were in possession since 03.08.1978 when they purchased the plot by way of agreement and in 1996 raised construction; the plaintiffs were aware about the said facts and they did not raise any objection and the suit was filed on incorrect/false facts and, therefore, the defendants were entitled to special cost of Rs.10,000/ -; the valuation of the plot is incorrect and insufficient Court fees has been paid; the suit was barred by limitation and prayed that the suit be dismissed.;