Pratap Krishna Lohra, J. - (1.) THIS appeal under Section 100 CPC is filed by defendant Kheta Ram, who has lost concurrently in both the Courts below, impugning the judgment and decree dated 6th September 2012, passed by Addl. District Judge (Fast Track) No. 2, Hanumangarh Headquarter Nohar (learned lower appellate Court), affirming the judgment and decree dated 17th August 2004 passed by learned Civil Judge (Sr. Div.), Nohar (learned trial Court), whereby the suit filed by plaintiff Prayagchand seeking permanent injunction against defendant was decreed.
(2.) THE facts, apposite for disposal of this appeal, are that respondent -plaintiff initially filed a suit on 09.01.1995 for permanent injunction against appellant -defendant before the learned trial Court for restraining the defendant from interfering with his possession and raising construction on his plot. Later on, an application for amendment of the suit was moved by the plaintiff and on permission being granted by learned trial Court, amended suit was filed, inter -alia, with the averments that on 22.08.1973 he had purchased a residential plot measuring 50' x 40', located near PWD Rest House, Nohar, from Gram Panchayat, Chak Sardarpura, with its dimensions 50 ft. in North and West directions and 40 ft. in East and West, for which Patta was issued in his favour on 26.08.1973, which shows roads in North and East of the plot, towards West plot of Hari Ram Sunar and in South plot of Mangilal Panda. It was averred that the plot of western side was sold by Hari Ram Sunar to one Duniram and southern side plot was sold by Mangilal Panda to one Sadir Khan Dhobi, who constructed houses on their plots as such there exist houses of Sadir Dhobi and Duniram Sunar respectively in western and southern sides of his plot. The plaintiff further averred that in connection with his business he was residing in Nepal in recent past and his brothers Satyanaraya and Nathmal were looking after his plot, who also got constructed boundary wall of two feet height in some portion of the plot. Plaintiff also averred that he came to Nohar about one month back and for his treatment went to Jaipur, and on his return from Jaipur, he alongwith his brother visited the site of plot on 06.01.1995 then they found bricks lying outside his plot. On inquiry, it was revealed that those bricks were of defendant Kheta Ram who had staked there for raising construction on the plot. On approaching the defendant, he showed his adamancy to raise construction as such the suit was filed, however, the defendant during the pendency of the suit taking undue advantage of holidays of Iduljuha and Sunday falling on 23rd and 24th of February 2002 encroached over the disputed plot and swiftly added four feet wall on the existing wall, thereby raising the height of the wall to six feet, and also placed an iron gate on the plot belonging to plaintiff. The defendant also got constructed a godown in the north -west of plaintiff's plot and started keeping animals therein. The plaintiff in the amended suit prayed for mandatory injunction against defendant to dismantle the construction raised in the plot and remove its debris and thereafter hand over its possession to him and on defendant's denying to do so for getting vacated the plot through Court and handing over its possession to him and restraining the defendant by permanent injunction from raising construction on the plot and refrain him from interfering with the plaintiff's possession. Contesting the amended suit, defendant filed written statement and denying the claim of plaintiff stated that neither the disputed plot is pattasud plot of plaintiff, nor was it in his possession and that he had not raised any construction thereon. It was case of the defendant that the plaintiff is having only an exponential patta and has no place where it can be fitted, rather the defendant claimed the disputed plot of his own pattasud plot and he having its possession. According to defendant, the boundary wall on the plot already existed and he had only got constructed the godown. It was asserted by defendant that on 05.07.1972 after depositing the cost of plot with Gram Panchayat, Chak Sardarpura he had taken its possession and since then it was in his use occupation and was being used for keeping animals and dumping waste. The defendant detailed out neighborhoods of the plot in the reply mentioning that in the northern side of plot there is house of Hanuman, in South a way and house of Gopiram, in East a public way, and towards West house of Duniram. According to defendant, the plaintiff never got possession of the said plot and the patta with the plaintiff relates to some other place but out of greed he has instituted the suit. At last, the defendant prayed for dismissal of the suit.
(3.) ON these pleadings, the learned trial Court framed following issues: ;