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2022 DIGILAW 1219 (RAJ)

Sonu Kanwar v. Vikram Kumar

2022-04-19

RAMESHWAR VYAS

body2022
JUDGMENT 1. The present civil second appeal has been preferred under Section 100 of the Code of Civil Procedure, 1908 by the legal representatives of original defendant No. 1 - Arjun Singh (appellants herein) against impugned Judgment and Decree dated 08.04.2021 passed by the Additional District Judge, Bali, District Pali in Civil Appeal Decree No. 33/2010 titled as 'LR's of Arjun Singh Vs. Vikram Kumar & ors.' vide which first appeal preferred by the appellants against the Judgment & Decree dated 28.05.2010 passed by the Civil Judge (Senior Division), Bali, District Pali in Civil Original Suit No. 09/2003 titled as 'Vikram Kumar & anr. Vs. Arjun Singh & anr.' decreeing the suit for injunction filed by the plaintiffs (respondent Nos. 1 & 2 herein), was dismissed. 2. The facts of the case in brief are that the plaintiffs - Vikram Kumar and Vinod Kumar (respondent Nos. 1 & 2 herein) filed a civil suit seeking prohibitory and mandatory injunction against the original defendant No. 1 - Arjun Singh and Vikram Kumar s/o Kanhaiya Lal, to the effect that plaintiffs had purchased a piece of land on 19.02.2001. The plaintiffs constructed the shop on the aforesaid land purchased by them and started business of cement and grains. In the northern side of the above land, defendants constructed cabins while encroaching upon the land of the Gram Panchayat. On account of which, obstruction was caused to the plaintiffs in their approach towards the way situated in North of the land of the plaintiffs. The plaintiffs and the Gram Panchayat tried their best to remove encroachment made by defendants on the said land but of no avail. 3. In the written statement, the defendants averred that they were running tea stall for last 25 years. The 'paan' stall was also running for last more than 20 years. They could be evicted only after filing the suit for eviction. They also averred that the land belonged to the Gram Panchayat. After framing issues and recording the evidence, suit was decreed by the trial court. Aggrieved with the judgment and decree of the trial court, legal representatives of the original defendant No. 1 - Arjun Singh filed the first appeal under Section 96 of C.P.C., which was also dismissed vide Judgment and Decree dated 08.04.2021. Aggrieved with both the judgments, this second appeal has been filed by the appellants/defendants before this Court. 4. Aggrieved with the judgment and decree of the trial court, legal representatives of the original defendant No. 1 - Arjun Singh filed the first appeal under Section 96 of C.P.C., which was also dismissed vide Judgment and Decree dated 08.04.2021. Aggrieved with both the judgments, this second appeal has been filed by the appellants/defendants before this Court. 4. Heard learned counsel for the appellants on admission and perused the record of the courts below. 5. Learned counsel for the appellants has submitted that in this case, disputed property belonged to the Gram Panchayat, however, the Gram Panchayat was not impleaded as party and in absence of Gram Panchayat, decree could not be passed by the trial court. He further submitted that proceedings initiated by the Gram Panchayat to remove possession of the appellants treating it as encroachment, was set aside by the S.D.M. The appellants also approached the Gram Panchayat for issuance of patta of the disputed land. He further submitted that the plaintiffs never used the way towards northern side of their land. They did not have any right to use the disputed land as a way. The land purchased by the plaintiffs-respondents was encircled by constructing the boundary. However, with the aim to remove old possession of the appellants, opening towards northern side was made after removing boundary wall by the plaintiffs, whereas, on account of old possession for more than 25 years, a right was created in favour of the appellants to retain the possession. The plaintiffs did not have any right to create a new way towards northern side of their land. He has further submitted that both the courts below have failed to appreciate the evidence in right perspective, hence, judgment and decree impugned passed by both the courts below are not sustainable in the eyes of law on account of misconstruing the evidence led by the parties. The suit was also barred by limitation. 6. Having considered the contentions raised by learned counsel for the appellants and after going through records and the judgments impugned, following factual position emerges in the present case :- It is an admitted position that the appellant's possession over disputed land has not created any right in favour of the appellants over the subject land. The plea of adverse possession has been correctly dealt with by the first appellate court while deciding Issue No. 5. The plea of adverse possession has been correctly dealt with by the first appellate court while deciding Issue No. 5. The essential conditions for establishing adverse possession over the land have not been pleaded in the written statements. As per provisions of law, one cannot claim himself as owner over the government land on the basis of possession, which is for a period of less than 30 years. For adverse possession, it is necessary that the possession should be peaceful and without any interruption, whereas, in the present case, it is admitted position that the Gram Panchayat initiated proceedings against the appellants for removal of their encroachment. Hence, possession of the defendants could not be termed as uninterrupted. It is also admitted position that the land in question belongs to the Gram Panchayat and without impleading the Gram Panchayat as party, appellants cannot claim adverse possession over disputed land. It is not in dispute that land in question is situated in the northern side of the plaintiffs-respondent's land. It is also not in dispute that the plaintiffs have established by oral and documentary evidence that they have right for opening towards northern side. It is immaterial whether the plaintiffs constructed boundary wall on their land without keeping opening towards northern side of their property. Only on account of the fact that previously no opening was kept towards northern side, the plaintiffs- respondents do not loose their right to keep opening towards northern side of their land. There are concurrent findings of both the courts below regarding factual position to the effect that appellants-defendants have encroached upon the subject land. They also failed to establish their right on the basis of adverse possession. 7. In view of the above, this Court is of the opinion that both the courts below did not commit any error in giving findings in favour of the plaintiffs. There is no substantial question of law involved in this second appeal for consideration by this Court. 8. Consequently, the present second appeal being devoid of any merit, is not fit for admission, hence, is dismissed in limine.