Judgment

Mr. H.S. Madaan, J.

Briefly stated facts of the case are that plaintiff Gopal Inder Singh, Surinder Singh sons and Amrit Kaur wife of late Surjit Inder Singh, had brought a suit against defendant Ghashi son of Sheo Chand, seeking possession of a plot fully detailed in headnote of the plaint, situated within revenue estate of Village Khera Khemawati, Tehsil Safidon, District Jind after ordering demolition of the ghair, khor and all other types of construction.

As per case of the plaintiffs, they are owners of the plot in dispute. In a suit earlier filed by defendant regarding this very plot, the Court of Sub Judge, Ist Class, had held the plaintiffs to be owners of the plot, however, the plaintiffs were asked to take possession of defendant in due course of law, vide judgment and decree dated 03.06.1983 upheld by Ist Appellate Court on 24.08.1984. The plot in dispute is in the shape of ghair and is in the front portion of the building of the plaintiffs. The water from house of plaintiffs flow through this side and there is an obstruction in the flow. The possession of defendant over the plot in dispute is unauthorized, therefore, he is liable to vacate the same.

2. On notice, the defendant appeared and offered a contest by filing a written statement, raising various legal objections, contending that he is in possession of the suit land as a trespasser for the last more than 45 years and prior to him, his predecessor in interest were in possession of the suit land, therefore, he has become owner of the plot by way of adverse possession. On merits, the defendant contended that the previous suit was for grant of permanent injunction in which issue regarding possession was the only relevant issue and not the ownership, therefore, the verdict given with regard to ownership being irrelevant is not binding on the parties by principle of res-judicata. The plea of adverse possession was not taken by the answering defendant who was plaintiff in that suit and no such issue was framed. Now the defendant is not debarred from taking that plea. Therefore, the plaintiffs have no right to take possession from the defendant. The defendant prayed for dismissal of the suit.

3. The plaintiffs filed replication, controverting the allegations in the written statement whereas reiterating the averments in the plaint.

4. From the pleadings of the parties, following issues were framed:-

1. Whether the plaintiffs are the owners of the property in dispute as alleged? OPP

2. Whether the plaintiffs are entitled for the possession? OPP

3. Whether the suit is time barred? OPD.

4. Whether the defendant has become the owner of the suit property by virtue of adverse possession? OPD.

5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?

6. Relief.

5. Parties were afforded adequate opportunities to lead evidence in support of their respective claims.

6. After hearing arguments, the trial Court of Sub Judge, Ist Class, Safidon decided issues No.1 to 4 in favour of the plaintiffs and against the defendant; issue No.5 was decided in favour of the plaintiffs and against the defendant being not pressed by learned counsel for the defendant at the time of arguments. As a result of findings on issue, vide judgment and decree dated 27.01.1989, suit of the plaintiffs was decreed with costs against the defendant and he was directed to hand over the vacant possession of the suit plot to the plaintiffs on or before 28.02.1989 after removing the construction raised by him over the plot in dispute, otherwise, the plaintiffs shall be entitl