IMPORTANT POINT
Pleadings--Claim over the suit land on the basis of oral agreement was not pleaded in the written statement and therefore, the same being beyond pleadings cannot be taken into consideration.

Mr. Rakesh Kumar Garg, J.

CM No.7789-C of 2010

For the reasons mentioned, the application is allowed. Delay, if any, in making up the deficiency in Court fee, is condoned.

RSA No.2598 of 2010(O&M)

This is defendants’ second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiffrespondent for possession was decreed further restraining the defendants from raising any construction over the same and with a further direction to hand over the vacant possession.

2. As per the averments, Sh. Chhotu, father of the plaintiffs, was owner in possession of the suit property which was allotted to him during consolidation. He died on 12.5.2002 and the plaintiffs along with their sisters became owners in possession of the suit property. However, the defendants have forcibly occupied the same and raised construction without any authority. Despite the plaintiffs’ request to hand over the possession, they refused to do so. . Hence the present suit for possession.

3. Upon notice, the defendants put in appearance. Defendant No.1 filed written statement and submitted that the suit was not maintainable. It was further stated that the plaintiffs were neither owners nor in possession over the suit land because as per the demarcation report dated 29.11.2004, the defendants were using the suit land since long by constructing their residential houses. The plaintiffs never requested for delivery of possession and that a false suit was filed by them which deserved to be dismissed.

4. On the basis of the pleadings of the parties, the following issues were framed by the trial Court:

“1. Whether Sh. Chhotu father of the plaintiffs was owner in possession of the suit land as mentioned and described in the head note of the plaint, situated in village Kurar, Tehsil and Distt. Panipat and after his death, the suit property has devolved upon his children including the plaintiffs? OPP

2. Whether the defendants have forcibly occupied the suit land and have raised construction on the same at the back of plaintiffs? OPP

3. In case issues No.1 and 2 are decided in favour of the plaintiffs, then whether the plaintiffs are entitled to possession of the suit land? OPD

4. In case issues No.1 to 3 are decided in favour of the plaintiffs, then whether the plaintiffs are also entitled to injunction as prayed for? OPD

5. Whether the suit of the plaintiffs is not maintainable in its present form? OPD

6. Whether the plaintiffs are neither owners nor in possession of the suit land? OPD

7. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD

8. Relief.”

5. Both the parties led their evidence in support of their respective contentions.

6. After hearing learned counsel for both the parties, the trial Court decided issues No.1 to 4 in favour of the plaintiffs whereas issue No.5 to 7 were decided against the defendants and consequently, the suit was decreed.

7. Aggrieved from the aforesaid judgment and decree dated 31.1.2009, the appellants preferred an appeal before the Lower Appellate Court which was also dismissed vide impugned judgment and decree dated 20.4.2009.

8. Still not satisfied, the appellants have approached this Court by way of instant appeal submitting that the following substantial questions of law arise in this appeal:

“I. Whether a suit for possession is maintainable without giving any date, month or year of dispossession or disclosing the cause of action?

II. Whether a suit for possession is maintainable regarding 45 years old construction of a house which was constructed after purchase by an oral agreement on 13.9.1963?

III. Whether the courts below are justified in decreeing a suit for possession without recording a finding that the possession of the appellants/defendants is more than 12 years old, open, hostile and to the knowledge of the plaintiffs?

IV. Whether the entries in jamabandies are rebuttable?

V. Whether a suit for possession without impleading all the co-sharer