JUDGMENT :

Alka Sarin, J.

CM-19434-C-2018 & CM-19436-C-2018

1. For the reasons mentioned therein, the applications seeking condonation of 101 days delay in refiling the appeal and condonation of 51 days delay in filing the appeal are allowed. The delay of 101 days delay in refiling the appeal and the delay of 51 days delay in filing the appeal is condoned.

RSA-15013-2018

2. The present appeal has been preferred by the defendant Nos.2, 3 and 4 (defendant-appellants) challenging the judgment and decree dated 24.10.2013 passed by the Trial Court and the judgment and decree dated 20.12.2017 passed by the First Appellate Court.

3. Brief facts relevant to the present lis are that the plaintiff-respondent Nos.1 and 2 filed a suit for possession and permanent injunction. It was averred that Jagan Nath Vyas, and his son Shankar Lal Vyas were biswedars and owners of the entire land of village Shimli and had given their agricultural land to various persons for cultivation and the land within abadi to various persons for residential purposes. It was further averred that the forefathers of the plaintiff-respondent Nos.1 and 2 were given land comprised in Khasra No.254/212/3 for residential purpose which during consolidation was alloted Khasra No.57. The ancestors of the plaintiff-respondent Nos.1 and 2 had constructed a house over some portion of the suit land while the open land was used for tethering cattle. It was averred that the defendants had, in collusion with the revenue officials, got their names recorded against 3 marlas of the suit land and had also constructed a wall and installed a gate to which they had no right. Hence, the suit. In the written statement the defendants raised preliminary objections of maintainability, locus standi, valuation and limitation. On merits it was that denied that Shankar Lal Vyas or his ancestors owned the entire land of village Shimli or had given their agricultural land to various persons for cultivation and the land within abadi to various persons for residential purposes. It was denied that the suit land was given to the ancestors of the plaintiff-respondent Nos.1 and 2 or that they were in possession. According to the defendants the suit land adjoined their own property and the defendants had been using the 3 marlas for approaching the main Rasta. According to the defendants in 1971 the entry in their favour in the revenue record was made after a site visit by the Patwari. Ownership of the suit land by way of adverse possession was claimed by the defendants. Replication was filed denying the averments made in the written statement and reiterating those made in the plaint.

4. On the basis of the pleadings of the parties the following issues were framed :

1. Whether plaintiffs are entitled for possession of the suit land as alleged in the plaint ? OPP

2. Whether plaintiffs are entitled for relief of injunction as prayed for ? OPP

3. Whether the present suit is not maintainable ? OPD

4. Whether the plaintiffs have no locus standi to file the present suit ? OPD

5. Whether present suit is bad for want of non-joinder and mis-joinder of necessary parties ? OPD

6. Whether the defendants are entitled to special costs under Section 35A CPC from the plaintiffs ? OPD

7. Relief

5. The Trial Court vide judgment and decree dated 24.10.2013 decreed the suit of the plaintiff-respondent Nos.1 and 2. Aggrieved by the decision of the Trial Court, an appeal was preferred by all the defendants including the defendant-appellants. The said appeal was dismissed by the First Appellate Court vide judgment and decree dated 20.12.2017. Hence, the present regular second appeal by the defendant-appellants. 2 out of the 5 defendants have not filed the present appeal.

6. The learned counsel for the defendant-appellant has contended that both the Courts have erred in decreeing the suit of the plaintiff-respondent Nos.1 and 2. It is urged that during consolidation the father of the plaintiff respondent Nos.1 and 2 had got his name inserted in