Possession protects a party from dispossession without lawful authority, and agreements to sell cannot override established possession without clear evidence.

ORDER

ALKA SARIN, J.

CM-10927-C-2023

1. For the reasons mentioned therein, the application seeking condonation of 601 days delay in refiling the appeal is allowed. The delay in refiling the appeal is condoned.

RSA-3056-2023

2. The present regular second appeal has been preferred by the defendant No.2 and one Sudesh Kumari against the judgements and decrees dated 05.12.2016 and 27.08.2019 passed by the Trial Court and the First Appellate Court.

3. The suit for declaration and permanent injunction was filed by the plaintiff-respondent No.1 on the allegations that she was the owner of the plot in dispute measuring 100 square yards. One Tilak Raj had executed two agreements to sell dated 23.12.2002 and 8.4.2003 in her favour qua land measuring 100 square yards each and that she had raised construction on 100 square yards but the entire 200 square yards was under her possession. However, when the plaintiff-respondent No.1 learnt that Tilak Raj was not the owner of the land measuring 200 square yards and had no authority to execute any agreement to sell in her favour, the plaintiff-respondent No.1 purchased one plot measuring 100 square yards from defendant No.1- respondent No.2 herein vide sale deed No.4694 dated 12.08.2010 (Ex.PW10/G) and the mutation was also sanctioned in favour of the plaintiff-respondent No.1. However, according to the plaintiff-respondent No.1 the boundaries of the plot sold to her did not tally with the plot which was in her possession under the agreements to sell executed by Tilak Raj. Hence, the suit seeking a declaration that the dimensions mentioned in the sale deed are liable to be corrected and for permanent injunction restraining the defendants from illegally and forcibly dispossessing the plaintiff- respondent No.1 and taking possession of said plot measuring 100 square yards. The defendant Nos.1 and 2 contested the suit and denied the averments made in the plaint. It was denied that the boundaries mentioned in the sale deed dated 12.08.2010 were not correct or that the plaintiff- respondent No.1 was in possession. It was the stand taken that the plaintiff- respondent No.1 had constructed her house on the plot purchased by her vide sale deed dated 12.08.2010 and that the plaintiff-respondent No.1 was wanting to encroach on land not owned by her.

4. From the pleadings of the parties following issues were framed by the Trial Court :

1. Whether plaintiff is entitled to relief of declaration as prayed for ? OPP

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

3. Whether the suit of the plaintiff is maintainable ?

OPP

4. Whether the plaintiff has cause of action or locus standi to file the suit ? OPP

5. Whether the plaintiff is barred by her act and conduct to file the suit ? OPD

6. Whether the plaintiff has not come to the Court with clean hands ? If so, its affect ? OPD

7. Whether the suit is bad for non-joinder of necessary parties ? OPD

8. Whether the suit is not properly valued for purposes of court fee and jurisdiction ? OPD

9. Whether the suit is barred by limitation ? OPD

10. Whether the suit is barred u/o 2 Rule 2, CPC ?

OPD

11. Relief.

5. Vide judgement and decree dated 05.12.2016 the Trial Court partly decreed the suit of the plaintiff-respondent No.1. While the relief of declaration was declined, the relief of permanent injunction was granted and the defendants were restrained from dispossessing the plaintiff-respondent No.1 from suit property. Against the judgement and decree passed by the Trial Court, two appeals were filed – one by the plaintiff-respondent No.1 and the other by the defendant No.2 and one Sudesh Rani who claimed to have p