Mr. Amit Rawal, J. (Oral):- The appellant-plaintiff is aggrieved of the judgment and decree dated 21.08.1999 rendered by the lower Appellate Court, whereby the appeal preferred by the defendants against the judgment and decree dated 30.11.1994 of the trial Court, which had decreed the suit for possession of the suit property, has been allowed, in essence, the suit was dismissed.

2. It would be apt to give preface of the matter before adverting to the rival contention of learned counsel for the parties.

3. The appellant-plaintiff instituted the suit, aforementioned, on the premise that he was the owner of the residential Gait marked by letters ABEGHFCD in the site plan (Ex.P-1) as per the measurement and boundaries given hereinbelow:

“Measurement : AG =63 feet : GH = 58 Feet, HD = 60 feet DA 52 feet;

Boundaries

North - Property of Todar

South Thoroughfare

East Property of Tejram

West Property of Jaggannath;

situated within the abadi deh of village Bhagola Tehsil Palwal, District Faridabad. It was averred that the suit property was lying open and the defendants in connivance with each other, encroached upon the portion marked by letters BCEF and EFHG as shown in red colour in the site plan (Ex.P1) by installing bongas & bitoras and threatened to dispossess the plaintiff from the portion marked by letter ABCD i.e. the remaining portion of the suit property illegally and forcibly. It is, in this background of the matter, the possession and injunction was sought.

4. Defendant No.2 was proceeded ex parte, whereas defendant No.1 contested the aforementioned suit by taking plea of limitation, estoppel etc., and on merits, it was submitted that the property marked as GHML in the site plan (Ex.D-1) was owned and possessed of defendant No.1 and the property marked by letters EFGH in the site plan Ex.D1 was already in possession of the plaintiff as owner thereof, therefore, the plaintiff had nothing to do with the property in dispute. The boundaries and the measurement of the suit property mentioned in para No.1 of the plaint were not correct as there had been a long litigation with regard to the partition, wherein civil appeal no.31 of 05.10.1976, it was held that the plaintiff had no share in the properties of the defendant which had already been partitioned. The father of the parties had executed the Will dated 20.04.1970 bequeathing his property in equal share in favour of his sons. The plaintiff had received Rs. 400/- from the defendants and he had no right, title and interest, in the suit property and prayed for dismissal of the suit.

5. The trial Court on the basis of the pleadings framed the following issues:-

“1. Whether the plaintiff is owner of residential gait described in para No.1 of the plaint? OPP.

2. Whether the defendants have encroached upon portion shown by letters ABEF of said residential gait on 20.05.1987? OPP

3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP

4. Whether the plaintiff has no locus standi to file the present suit? OPD

5. Whether the suit is within limitation? OPD

6. Whether the plaintiff has no cause of action to file the present suit? OPD.

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

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

9. Relief.

6. The plaintiff in support of his evidence brought on record the judgment dated 05.10.1976 (Ex.PX) and decree (Ex.PY). He himself appeared as PW-2. The site plan (Ex.P1) was proved through PW-1 Subhash Chand, Draftsman. Harnnarain son of Teekam appeared as PW-3 and proved (Ex.P-2) copy of rough site plan filed in civil suit No.294 of 1971 titled as “Sukhnandan V/s Het Ram Goswara No.52 photostat copy of the same was Ex.PW3/1.

7. Defendant Het Ram while appearing as DW-4 stated that the length of his gait is 54' and breath is 21', which is bounded as under:-

“East Gait of Durga Parsahd

West Gait