Possession claims must be substantiated with evidence; the mere existence of an old agreement without action does not support a claim for possession after significant delay.

JUDGMENT :

Romesh Verma, J.

The present appeal arises out of judgment and decree as passed by learned District Judge, Hamirpur, dated 31.08.2017, whereby the appeal filed by the present appellants has been dismissed and the judgment and decree as passed by learned Civil Judge (Junior Division), Court No.III, dated 01.12.2015, whereby the suit filed by the appellant was ordered to be dismissed, have been affirmed.

2. The facts of the case are that the plaintiffs/appellants filed a suit under Sections 5 and 6 of the Specific Relief Act, 1963 for possession of land comprised in Khasra No.1181/1 and 1181/2, measuring 17.60 and 11.44 Sq Mts. respectively, total measuring 29.04 Sq Mts. against the defendant/respondent.

3. It was averred in the plaint that the defendant is the real uncle (chacha) of the plaintiffs and in the year 2000-2001, he illegally and forcibly raised one room and a Palli in the absence of the plaintiffs. Father of the plaintiffs late Shri Bakshi Ram objected to the same, upon which the defendant/respondent assured that he was falling short of the land and shall vacate the suit land very soon but he did not fulfill his promise and did not vacate the same. The plaintiffs moved an application for demarcation before the Assistant Collector, 2nd Grade, Hamirpur which was ultimately decided on 09.08.2008 in Revenue Case No.159/07, titled Sunil Kumar vs. Principal Polytechnic College and others. The defendant was requested number of times to admit the genuine claim of the plaintiffs and to handover the vacant possession of the land so encroached as per order of the Revenue Officer. The cause of action arose to the plaintiffs for the first time in the year 2000-2001 when the defendant illegally and forcibly raised one room and a Pallli over the suit land in the absence of the plaintiffs. Therefore, it was prayed that decree for possession of the suit land be passed in favour of the plaintiffs and against the defendant.

4. The suit was contested by the defendant/respondent by raising various preliminary objections such as maintainability, cause of action, limitation, estoppel etc. On merits, it was stated that the suit land and the shop was purchased by the defendant from his father late Shri Mor Ram, who was grand-father of the plaintiffs. During the year 1988, an agreement was executed by late Shri Bakshi Ram, father of the plaintiffs in favour of defendant Lokha Ram and the defendant had paid the cost of suit land for a sum of Rs.10,000/- to late Shri Mor Ram, grandfather of the plaintiffs. The said agreement was executed between the parties on 03.03.1988 in the presence of father and grandfather of the plaintiffs. It was averred that the construction over the suit land was already made by the defendant prior to the year 1988 and the suit land, including, lintel and shop was already in the actual and physical possession of the defendant prior to the year 1988. It was further stated that the plaintiffs are very much aware about the execution of the agreement dated 03.03.1988 between the grandfather of the plaintiffs and the present defendant. The construction over the suit land was raised prior to 1988 and the expenses of the construction were incurred by the defendant after purchasing the suit land from the grandfather of the plaintiffs. Therefore, it was prayed that the suit filed by the plaintiffs be dismissed.

5. The plaintiffs filed replication and the averments as made in the plaint were reiterated.

6. Learned trial Court framed issues on 10.10.2011 in the following manner:

“1. Whether the plaintiffs are entitled for decree of possession, as alleged? OPP.

2. Whether the