The main legal point established in the judgment is the burden of proof in cases of encroachment and adverse possession, as well as the applicability of specific relief act and Indian Limitation Act.

JUDGMENT

1. This appeal under Section 96 of the Code of Civil Procedure has been preferred by the appellants/defendants being aggrieved by the judgment and decree dated 28.02.2006 passed by the XII Additional District Judge, Fast Track Court, Jabalpur in Civil Suit No. 53-A/2003, whereby learned Court below passed the decree against the present appellants/defendants to deliver vacant possession of the suit land to the respondent/plaintiffs.

2. In brief, the case filed by the respondent is that the respondent/plaintiff is a registered co-operative society working through its President. The suit land bearing Khasra No. 44 was purchased by the Society to establish a school. Remaining land was sold to different shareholders after plotting the area. The appellants/defendants encroached some part of the disputed land which is shown in the suit map. They are not ready to vacate the land. The appellants/defendants denied the claim of the respondent/plaintiff and pleaded that the suit land was granted to them by Late Ishwari Prasad with the consent of his father. Their names have been mutated in the year 1984-1985. They have not encroached upon the suit land. They are in possession of the suit property since the year 1976 and this fact was in knowledge of the respondent/plaintiff, hence the respondent/plaintiff is not entitled for any relief.

3. After considering the evidence produced by both the parties, learned trial Court came to the conclusion that the respondent/plaintiff is the owner of the suit property bearing Khasra No. 44. In the suit map, the area shown as B and C admeasuring 962 sq. ft. have been illegally encroached upon by the appellants/defendants. Thus, the suit was partly decreed by the trial Court in favour of the respondents/plaintiffs. The appellants/defendants were directed to deliver vacant possession of the suit property to the respondent/plaintiffs and also bear the cost of suit.

4. The aforesaid finding is challenged by the appellants/defendants before this Court mainly on the ground that the respondent/plaintiff has failed to prove that the suit property was encroached by the appellants/defendants and that the trial Court has not considered the fact that the appellants/defendants were in possession of the suit property since the 1976 with ownership rights.

5. The appellants also contended that the learned trial Court wrongly held that the cause of action arose since 05.11.1998. Learned trial Court has wrongly held that the suit filed by the respondent/plaintiff is within time.

6. During the argument, learned counsel for the appellant drew the attention of this Court towards the pleadings of the plaint and stated that the respondent/plaintiff has not pleaded material facts in his plaint. The evidence has been pleaded which is against the provisions of Order 6 Rule 4 of CPC. The case of the respondent/plaintiff is also affected adversely in the light of Order 7 Rule 1(e) of CPC.

7. Heard learned counsel for the parties. Perused the record.

8. It is not in dispute that the respondent/plaintiff is a registered society. The society has sale deed Ex. P/1 which proved that the suit land was purchased by the society in the year 1972. In support of aforesaid sale deed, testimony of Surendra Pillai (PW-1) was found unrebutted. After considering the finding of learned trial Court, this Court is not inclined to disbelieve his testimony which is duly supported by other evidence. There is a map (Ex.P/2) which was passed by the Town and Country Planning Department after execution of the sale deed (Ex.P/1) in favour of the respondent/plaintiff which proved that the suit property was purchased for building of a school. This fact has also been supported by the testimony of T.R.Verma (PW-2) which is unchallenged by the appellants in his crossexamination.

On the contrary Maganlal did not claim that the suit property bearing Khasra No. 44 was his own property, nor he filed any document to rebut the evidence produced by the responde