Jai Prakash Gupta vs Paramjeet Singh Khanuja

Rohit Arya, J.—This Writ Petition under Article 227 of the Constitution of India is directed against the order dated 16/5/2014 passed by First Additional District Judge, Guna in Civil Suit No. 32-A/2011. By aforesaid order the Trial Court has dismissed the application filed by defendant under Order XIV Rule 5 of CPC.

Facts necessary for the disposal of this petition are to the effect that plaintiffs have filed a suit for declaration, possession and mesne profits against defendant with the prayer that plaintiffs be declared to be the owner of the suit property, as described in the plaint map in green colour and marked as ''A'', ''B'', ''C'' and ''D'' admeasuring 18 X 50 sqft. of land, which is a part of plot No. C-11. Plaintiffs further prayed to remove construction and deliver the possession to them over the suit land and thirdly for mesne profits at the rate of Rs. 1,000/- per month.

Defendant has disputed right of plaintiffs over the suit land and by moving an application under Order XIV Rule 5 of CPC on 7/10/2013 it is inter alia contended that by a registered sale-deed dated 17/7/2006 executed by general power of attorney holder Satpal Sadana on behalf of Smt. Sarla Rani Juneja defendant has purchased the land falling in survey No. 881 and 882/4, plot No. C-12 admeasuring 30 X 50 sqft. i.e. 1500 sqft. and has acquired possession thereof. It is further pleaded that Smt. Sarla Rani Juneja has purchased the aforesaid plot from its original owner by a registered sale deed dated 31/3/1990. Consequent upon purchase of aforesaid plot, defendant has obtained sanction of the Nagar Palika Parishad, Guna for raising construction thereupon and his name was duly entered in the property tax registered by the Nagar Palika Parishad, Guna. He has constructed two storeyed house over the said land and is residing therein since 2008. With the aforesaid facts, defendant proposed following three issues:-

Admittedly, defendant has not filed any counter claim. Plaintiffs have filed a suit for declaration that the suit land be declared to be part of plot No. C-11, which is alleged to have been in an unauthorized possession of defendant. The burden of proof lies upon plaintiffs to establish alleged encroachment or illegal possession by defendant, hence, the aforesaid issues are not relevant to the dispute raised and relief sought by plaintiffs. The facts as narrated in aforesaid application under Order XIV Rule 5 of CPC can always be brought on record. Defendant is always free to lead evidence in order to negate the claim made by plaintiffs substantiating pleas raised in the written statement. In the opinion of this Court, neither there is any illegality nor any jurisdictional error in the order passed by the Trial Court, hence, no interference is warranted under Article 227 of the Constitution of India. Accordingly, petition stands dismissed.