IMPORTANT POINT
The burden of proof lies with the party making a claim, and non-appearance of a party in court does not negate established evidence.

JUDGMENT :

Virender Singh, J.

Appellants have filed the present Regular Second Appeal, against the judgment and decree, dated 11th September, 2007, passed by the Court of learned District Judge, Chamba Division, Chamba, H.P. (hereinafter referred to as the ‘First Appellate Court’), in Civil Appeal No. 36 of 2007, titled as Mehar Singh versus Desh Raj and another.

2. Vide judgment and decree, dated 11th September, 2007, the learned First Appellate Court has allowed the first appeal and reversed the judgment and decree, passed by the Court of learned Civil Judge (Senior Division), Dalhousie, District Chamba, H.P. (hereinafter referred to as the ‘trial Court’) in Civil Suit No. 56 of 2003, titled as Mehar Singh versus Desh Raj and another, whereby the learned trial Court has dismissed the suit of the plaintiff.

3. For the sake of convenience, parties to the present lis , are, hereinafter, referred to, in the same manner, in which, they were referred to, by the learned trial Court.

4. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under:

4.1. Plaintiff-Mehar Singh has filed the suit for permanent prohibitory injunction, restraining the defendants from interfering in the suit property, i.e. land comprised in khasra No. 540, khata/khatauni No. 48/53, measuring 0-15 bigha, situated in Mauza Jandrog, Pargana Raipur, Tehsil Bhattiyat, District Chamba, H.P., as well as, the suit for mandatory injunction, directing the defendants to restore the suit property to its original condition, if they succeed in demolishing the two storeyed house of the plaintiff, and in raising the construction, over the suit land.

4.2. In addition to this, the plaintiff has also sought the relief of possession of the suit land, bearing khasra No. 540/1, measuring 0-1-8 bigha, on account of illegal, unauthorized and wrongful construction and possession of the defendants, as shown in the spot map, dated 17th November, 2003.

4.3. The plaintiff has filed the said suit, on the ground, that he is owner in possession of the suit land to the extent of one third share. He has constructed a two storeyed house, over khasra No. 540, in the suit land. According to the plaintiff, since, the plaintiff, mostly stayed in Village Siune, as such, taking the advantage of his absence, the defendants started demolishing the two storeyed house of the plaintiff and raising construction over the suit land. This fact was noticed by the plaintiff, when, he visited the spot, on 4th July, 2003. The defendants are stated to be strangers to the suit property and the request of the plaintiff to desist from the illegal activities fell on deaf ears of the defendants. Consequently, the plaintiff served a notice on defendant No. 1, on 5th July, 2003, requesting him to stop the construction work, but, the defendants did not do so.

4.4. It is the further case of the plaintiff that on 14th, 15th and 16th July, 2003, during night time, during the pendency of the suit, the defendants forcibly raised the construction.

4.5. Based on these facts, suit has been filed, before the learned trial Court, for which, according to the plaintiff, cause of action had accrued to him in the first week of July, 2003, when, the defendants started demolishing the two storeyed house of the plaintiff and on 14th, 15th and 16th July, 2003, when, the defendants forcibly continued the construction work and completed the construction, up to the roof of the house.

4.6. On the basis of the above facts, the plaintiff has sought the relief, as prayed in the plaint.

5. When put to notice, the suit has been contested/ resisted by the defendants, by filing written statement, in which, they have taken the preliminary objections that the suit is not maintainable and that the plaintiff has no cause of action to file the present suit.

5.1. On merits, the contents of the plaint have been denied, by pleading that the plaintiff has sold his share in the suit land, as well as, the other land, in Mohal J