JUDGMENT :

VIKAS BAHL, J.

INDEX

1. Present order would dispose of two appeals arising from the same judgments. Regular Second Appeal No.557 of 1992 has been filed by the defendant-The Haryana Ware Housing Corporation in which challenge is to the judgment and decree dated 28.02.1987 vide which the suit filed by the respondent-plaintiff/Jai Narain had been decreed. Challenge in the said appeal is also to the judgment dated 17.12.1991 vide which the appeal filed by the defendant-The Haryana Ware Housing Corporation had been dismissed with slight modification/observations which were made in para 9 of the said judgment by the 1^st Appellate Court. Regular Second Appeal No.1055 of 1992 has been filed by the plaintiff-Jai Narain in which challenge is to the judgment of the 1^st Appellate Court dated 17.12.1991 to the extent that observations had been made in the last part of para 8 and para 9 of the judgment and the judgment of the trial Court had been slightly modified. Thus, in the said appeal, it has been prayed that the judgment of the trial Court dated 28.02.1987 be upheld.

2. In the present judgment, the parties are being referred to as plaintiff and defendant as they originally were before the trial Court.

ARGUMENTS ON BEHALF OF PLAINTIFF-APPELLANT IN RSA-1055-1992 (NOW BEING REPRESENTED THROUGH HIS LRS)

3. Learned counsel appearing for the plaintiff-Jai Narain has submitted that the trial Court as well as the 1^st Appellate Court on all the substantial issues had decided in favour of the plaintiff. It is further submitted that the plaintiff had filed the present suit for possession by way of demolition of construction shown in red colour in the attached site plan, which had been duly exhibited as Ex.PW4/2, with respect to the encroachment made by the defendant in Mustatil No.184//18, 19/2 and 23/1 and for joint possession of the land shown in red colour in the site plan which was comprised in Mustatil No.184//39 total measuring 1 Kanal 17 Marlas, situated in the revenue estate of Rewari. Learned counsel for the plaintiff has submitted that it is not in dispute that the plaintiff had purchased land measuring 14 kanals 0 marla in auction proceedings dated 25.05.1967 for a total sale consideration of Rs.12,100/-, which was conducted by Tehsildar Sales, Gurgaon and the entire sale consideration was paid and the sale certificate with respect to the same was issued on 12.06.1972 (Ex.PW1/1) and the possession regarding the said property was delivered to the plaintiff on 07.06.1972. It is further submitted that the defendant had illegally constructed a wall on the land of the plaintiff comprised in Mustatil No.184//18, 19/2, 23/1 and over land comprised in Mustatil No.184//39 although on the said Mustatil No.184//39, the plaintiff was owner to the extent of 1/3^rd share and with respect to other Mustatil numbers the plaintiff was the exclusive owner and the defendant had no right in the same.

4. It is submitted that the trial Court as well as the Appellate Court had decided the issue with respect to the plaintiff being the owner of the property in dispute in favour of the plaintiff and had also observed that the defendant had encroached upon the property of the plaintiff and that the trial Court had rightly decreed the suit of the plaintiff. It is submitted that however the 1^st Appellate Court although in the judgment had made all the observations in favour of the plaintiff but in the concluding part of paras 8 and 9 of the said judgment had made observations which were beyond the record and were perverse. It is stated that there is nothing on record to even remotely show that the parties were asked to carry out remeasurement or that on remeasurement, the deficiency in the area of the plaintiff was reduced to be 900 sq yards. It is further stat