S. T. KHARCHE, J.

( 1 ) INVOKING the jurisdiction of this Court under section 100 of the Code of Civil Procedure, this appeal has been filed challenging the judgment and decree dated 18-7-1989 passed by the learned Additional District Judge in Regular Civil Appeal No. 92 of 1985, whereby the appeal came to be dismissed and the judgment and decree dated 18-12-1984 passed by the learned Joint Civil Judge, Jr. Dn. , in Regular Civil Suit No. 31 of 1981 has been confirmed and it was declared that the plaintiffs are the owners of the suit site which is described by letters A-3, A-4, A-12, A-2 and A-3 in the suit map Ex. 32. The defendants were also directed to deliver the vacant possession of the suit site described by letters A-3, A-4, A-12, A-2 and A-3 in the suit map Ex. 32 after removing the construction from it with further direction that if the defendant fails to remove his construction over the above described suit site, the plaintiffs would be entitled to get it removed at their own costs.

( 2 ) BRIEF facts are required to be stated as under : the plaintiffs filed a suit for declaration that the suit site is owned by them and the defendants be restrained from interfering with their possession over the suit site. The plaintiffs contended that the father of plaintiff No. 1 left behind him the suite site of his ownership and possession and its size is 12 feet east west and southern side is of 12 feet of measurement. Similarly the north south eastern side is 26 feet and North South Western side is 26 feet. The house and open land of the defendant is towards the eastern side of the house of the plaintiff. The plaintiffs Nos. 1 and 3 are the sons of the plaintiff no. 4 is the daughter and plaintiff No. 2 is the widow of deceased Tulshiram and the plaintiffs No. 1 to 4 are the owners of the above said site as the heirs of Tulshiram. The walls of this house and open plot described in the suit map are there since beginning. The open land described by letters A-3, A-4, A-10, a-1, A-2, A-3 is the subject-matter of this suit. The other walls and house and the open land in front of the house of plaintiff are described in the suit map and the defendant without any right of interest encroached upon the open land of the plaintiffs shown by letters A-3, A-4, A-10 and A-2 in the map and started construction of wall on the land shown by letters A-3, A-4 and A-18. The defendant also removed 3 of 4 lays of bricks from the plaintiffs' wall described by letters A-1, A-2, A-10, A-12 in the map. The defendant was called upon to vacate the portion of the plot on which encroachment is made, but in vain. Therefore, the plaintiffs were constrained to file suit against the defendant.

( 3 ) THE defendant contested the suit and contended that his father had purchased the suit site on 23-3-1945 in a constructed position and since then this land is as it is and none of its portion was open land. The defendant also contended that the portion described by letters A-3, A-4, A-12 and A-3 as mentioned in the plaint map was never an open land nor in possession of the plaintiffs. This portion was the place of tin shed of the defendant from which the tin shed is removed for new pucca construction. The defendant contended that the wall described by letters A-3 and A-2 in the plaint map is the joint wall of the plaintiffs and defendant. The ownership of the plaintiffs on the entire portion of the suit map is not admitted by the defendant. The portion shown by letters A-13, A-14, A-15, A-10 in the plaint map was never an open land. There was tin shed of the defendant over the portion by letters A-13, A-14, A-18 which is to the north to the portion of A-13 and A-14. The portion in the plaint shown as A-3, A-2, A-1 and A-10 was the kitchen in the tin shed of the defendant and that he did not make any encroachment and the suit is totally misconceived and liable to be dismissed.

( 4 ) MR. Chandurkar, learned Counsel, for the appellant contended that admittedly the