PHUMAN RAM Vs. MUNSHI RAM

JUDGEMENT

(1.) THIS is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code') challenging the judgment of reversal passed by the ld. District Judge, Hoshiarpur on 18.9.1984. The ld. District Judge decreed the suit of the plaintiff-respondent and set aside the judgment dated 29.7.1983 passed by the Addl. Sr. Subordinate Judge, Hoshiarpur who had dismissed the suit of the plaintiff-respondent.

(2.) PLAINTIFF -respondent Munshi Ram filed Civil Suit No. 434/ASSJ/82 on 7.9.1981 seeking a declaration that he is owner in possession of the house marked ABCD in the site plan attached to the plaint and the portion marked AEFD shown red in the site plan as part of the court-yard of his house. It was claimed that the house had remained in possession of the ancestral of the plaintiff-respondent since times immemorial which is in his possession as owner. It is further alleged that Panchayat of the village built a pucca drain on the north and west of the house and have started threatening him that he would be dispossessed from the portion mark AEFD shown red in the site plan which is claimed to be part of the courtyard of his house. Plaintiff- respondent filed an application before the District Development and Panchayat Officer with a prayer to restrain defendant-appellant from interfering in his possession which was dismissed resulting into filing of the instant suit. In the written statement defendant-appellant took a preliminary objection stating that the suit is barred by the principles of res judicata. It was alleged that the disputed taur marked AEFD shown red in the sit plan was a public place used by all the Adharmis for common purposes which vested in the Gram Panchayat. The objection of mis-joinder and non-joinder of parties was also raised. It was further submitted that the plaintiff-respondent was estopped from filing the suit as his earlier suit was dismissed by the District Development and Panchayat Officer on 10.9.1979. It was further asserted that the Civil Court has no jurisdiction to try the suit. The averment with regard to ownership and possession of the plaintiff-respondent over the portion AEFD shown red in the site plan was denied by asserting that Gram Panchayat is owner of the property in dispute. A replication was also filed wherein it was pleaded that the District Development and Panchayat Officer did not have any jurisdiction to determine the controversy raised in the suit and there is no bar against filing of civil suit despite the fact that earlier application filed by the plaintiff-respondent was dismissed. It was denied that the suit land has ever vest in the Gram Panchayat. On the basis of the pleadings of the parties, following issues were framed :

(3.) ON issue No. 2, also the objection raised by the plaintiff-respondent was sustained that plaintiff-respondent had failed to implead necessary parties. It was held that the suit was liable to be dismissed under Order 1 Rule 9 (proviso) of the Code.