Entitlement to injunction based on continuous possession and absence of encroachment.

Darshan Singh, J.

CM No. 3286-C of 2016

This application has been moved under Section 151 of the Code of Civil Procedure, 1908 for condonation of delay of 14 days in refilling the appeal.

Heard.

In view of the reasons mentioned in the application, the application stands allowed and the delay of 14 days in re-filing the present appeal is hereby condoned.

R.S.A. No. 1169 of 2016 (O&M)

The present appeal has been preferred against the judgment and decree dated 28.09.2015 passed by the learned Additional District Judge, Faridabad, whereby the appeal filed by appellant-Haryana Urban Development Authority, Sector 12, Faridabad (for short HUDA) against the judgment and decree dated 15.11.2014 passed by the learned Civil Judge (Jr. Division), Faridabad, has been dismissed.

2. Plaintiff-respondent-Rohtash Kumar filed the suit for permanent injunction restraining the appellant-defendant from dispossessing the plaintiff from the suit property shown with letters 'ABCDEFG' in the site plan attached with the plaint and further restraining them from demolishing the construction existing thereupon.

3. As per the case of the plaintiff-respondent, he has been allotted 1000 Sq. yards land out of khewat no. 410, khata no. 448, khasra no.333 min (2-0) Gair Mumkin Kabristan situated in the revenue estate of Faridabad by the Punjab Wakf Board vide allotment dated 03.03.1983 i.e. the suit property. After obtaining the possession thereof, he constructed the boundary wall and also raised the construction of tin shed, room etc. Defendants have no concern therewith. Defendants earlier wanted to dispossess him. He brought a suit. The same was dismissed by the learned Civil judge (Jr. Division), Faridabad. He preferred the appeal which was accepted by the learned Additional District Judge, Faridabad vide judgment and decree dated 01.10.2007. Plaintiff has not encroached upon any portion of khasra no.332. They have not got the land demarcated. Still they are trying to dispossess the plaintiff. Hence the suit.

4. Appellant-defendant contested the suit on the grounds inter alia that the earlier suit filed by the plaintiff-respondent was dismissed by the Civil Court vide judgment dated 28.10.2006. However, his appeal was accepted by the learned Additional District Judge, Faridabad and he was granted injunction qua the land allotted to him. It was provided in the said judgment that in case of any encroachment over khasra no. 332, the defendant shall be at liberty to proceed against him to remove the said encroachment. It is further pleaded that the plaintiff has not come to the Court with clean hands as he was found to be in possession of land comprised of khasra no. 332 and is liable to be removed there from. It is further pleaded that defendants have got khasra no. 332 demarcated by the Patwari in the presence of plaintiff. As per the report dated 15.04.2009 plaintiff had illegally and unlawfully encroached upon the area measuring 128 Sq. yards. He has raised construction thereupon. Khasra no. 332 was acquired by the State Government vide Award No. 11 dated 12.01.1973 and appellants-defendants have become the absolute owner thereof. It is further pleaded that plaintiff is liable to be ejected there from and appellant-defendants are competent to remove his encroachment on the land measuring 128 Sq. yards. With these pleas, appellants-defendants pleaded for dismissal of the suit.

5. From the pleadings of the parties, the following issues were framed by the learned trial Court:-

1. Whether the plaintiff is entitled for a decree of permanent injunction, a prayed for? OPP

2. Whether the present suit is not maintainable in the present form? OPD

3. Whether the plaintiff had no locus standi and cause of action to file the present suit? OPD

4. Whether the plaintiff is estopped by his own act and conduct from filing the present suit ? OPD

5. Whether the suit of the plaintiff is barred by the principle of res judicata? OPD

6. Whether the plaintiff has not come to the Court wi