( 1 ) THIS appeal has arisen out of a judgment and decree passed by learned Additional District Judge, Tis Hazari, Delhi, dated December 18, 1975 whereby he set aside the judgment and decree dated October 20, 1974 passed by a Sub Judge dismissing the suit of the plaintiff/respondent (hereinafter REFERRED TO to as the respondent for the sake of brevity) and decreeing the suit of the respondent for recovery of possession to the extent of 4. 4. biswas of land as shown in the report of the Local Commissioner submitted on September 13, 1970.

( 2 ) BRIEF facts which are necessary in order to facilitate the disposal of the present appeal are being reproduced below. The plaintiff/respondent filed a suit in the Court of the Senior Sub Judge which was registered as Suit No. 1561/72 on the allegations that he was the owner and coloniser of a colony known as Raja Garden Colony situated in the revenue estate of Basai Darapur, Najafgarh Road, Delhi. The defendant/appellant (hereinafter REFERRED TO to as the appellant for the sake of convenience) is a firm which carries on business under the name and style New Multan Timber Store, Raja Garden, Najafgarh Road, Delhi. Defendants/appellants Nos. 2 to 6 are the partners of the abovesaid firm. The appellants are the owners of a plot of land which is adjoining the colony belonging to the respondent. They have put up wooden cabins on their land and while doing so, have encroached upon the land belonging to the respondent out of khasra No. 4996/2496/1929 situated in the revenue estate of Basai Darapur, Najafgarh Road, Delhi. The respondent is the sole and exclusive owner of the abovesaid land. The appellants thus have got absolutely no right or title to encroach upon any part of the said khasra Nos. The result is that the size of the plots bearing Nos. 116 to 120 has been reduced. Consequent to the above encroachment the respondent served the appellants with a notice dated February 24, 1968 to vacate the abovesaid encroachment by removing the wooden cabins raised by them, but to no avail.

( 3 ) THE appellants put in contest, inter alia, on the following grounds: that the appellants raised wooden cabins on their own land measuring 377 sq. yards (7 1/2 biswas forming part of khasra No. 3988/2602/1935 situated in village Basai Darapur, Najafgarh Road, Delhi on Ring Road, purchased by them from one Mohar Singh vide sale deed dated September 17, 1966. The appellants have thus not encroached upon any part of khasra No. 3996/2496/1929. In view of the above there is neither any question of the reduction of the size of the plots belonging to the respondent nor there is any question of vacating the alleged encroached land. The suit is false and frivolous. It is liable to be dismissed.

( 4 ) THE learned Sub Judge after having framed the issues and recorded the evidence was of the view that there was no encroachment on the land belonging to the respondent. He thus dismissed the suit.

( 5 ) THE respondent challenged the said decision before the District Judge by way of an appeal. The said appeal came up for hearing before an Additional District Judge who vide his judgment and order dated December 18, 1975 allowed the appeal, set aside the judgment and decree dated September 13, 1970 and decreed the suit of the respondent for recovery of possession of 4. 4 biswas of land as shown in the report of the Local Commission dated September 13, 1970.

( 6 ) AGGRIEVED and dis-satisfied with the said judgment and decree the appellants have approached this Court by way of the Second Appeal.

( 7 ) THE present appeal was admitted by this Court on February 11, 1976 as is manifest from the order sheet of the said date. However, no substantial question of law was framed on the said date. The substantial question of law was formulated by this Court during the course of arguments with the help of the learned counsel for both the parties on September 3, 1997 in the fallowing words:- @subpara = " Whether a judgment a