Judgment

J. Chelameswar, J.

Leave granted.

This appeal arises out of a judgment dated 23-1-2012 of the High Court of Rajasthan at Jodhpur in an appeal under Section 100 of the Code of Civil Procedure, 1908 (for short “CPC”). By the impugned judgment Civil Second Appeal No. 68 of 1993, the appeal was dismissed.

2. The appellant herein filed Civil Suit No. 71 of 1976 on the file of the Additional Munsif and Judicial Magistrate, First Class No. 1, Bikaner seeking a decree of permanent injunction restraining the respondent herein from dispossessing the appellant of a plot of land admeasuring 4914 sq yd and further not to demolish the construction existing over the said property. The appellant pleaded uninterrupted possession of the suit scheduled property from the year 1942. From the averments of the plaint, it appears that the appellant encroached on the said property in the year 1942.

3. The respondent herein disputed the claim of uninterrupted possession from the year 1942 and stated in his written statement as follows:

“In the year 1965 to remove the illegal possession of the plaintiff in notice was issue to him and upon receiving no response, the boundary wall of the suit property was dismantle. However, again he illegally occupied the said property.”

It is further stated in the written statement:

“… Improvement Trust got removed the possession of the plaintiff in 1965. Therefore, the plaintiff again repossessed the same and action is being contemplated to remove him from the suit property. However, issuing these period a new policy was amounted by the State Government according to which a policy of regularisation unauthorised possession or allotment of alternative plot in lieu of the illegally occupied land was announced. As per the said policy the plaintiff was offered the policy of regularisation of his 1808 sq yd land at rate Rs 3 per square yard and the same was to be offered in lieu of his illegal possession and constructional house over the land the plaintiff was issued a notice to this effect on two occasion with direction that he should deposit the amount. However, neither the plaintiff intended to deposit the amount nor he wished to remove his possession and he wants to enjoy the government land free of cost.”

4. Before we make any analysis of the above-extracted portion of the written statement, we must place on record, the extract does not make very comfortable reading whether the mistakes occurring in the said extract are typographical errors or are errors in the draft is a matter for conjecture. It only demonstrates the sorry state of affairs of the Indian legal system.

5. It can be seen from the above-extracted portion of the written statement filed by the respondent herein in the suit that the respondent admitted the possession of the plaintiff in the year 1965 and also admitted that the appellant re-entered the property after having been evicted from the same in the year 1965. Be that as it may, the above-extracted portion of the written statement leaves no scope for any doubt that as on the date of the suit, even according to the respondents herein, the appellant-plaintiff was in possession of the suit scheduled property and also that there was a house in existence in the said property.

6. On the basis of such pleadings, the trial court framed various issues. Relevant for the present purpose are:

“(a) Whether the plaintiff is in possession of disputed property including the boundary wall and construction over it and land measuring 4914 sq yd as owner in possession and adverse against the defendant since 1942?

(b) Whether the plaintiff is entitled for a decree of permanent injunction with respect to disputed property?”

7. The trial court, on appreciation of evidence refused to believe the possession of the appellant prior to 1959 but recorded a conclusion that subsequent to 1959, the appellant has been in possession. In spite of such a finding, the suit was dismissed.

8. Aggrieved by the same, the appellant herein carrie