DHARAMBIR Vs. RAM

JUDGEMENT

(1.) FEELING aggrieved against the impugned judgments and decrees passed by the learned courts below, thereby decreeing the suit of the plaintiff for permanent injunction, defendant has approached this Court, by way of present regular second appeal.

(2.) BRIEF facts of the case, as recorded by learned first appellate court, are that initially the plaintiffs filed a suit for permanent injunction for permanently restraining the defendants from interfering in their peaceful possession of land measuring 43 kanals 5 marals fully detailed and described in the head note of the plaint (hereinafter referred as the suit land) inter alia on the grounds that earlier the parties to suit had been co -share in total land measuring 111 kanals 10 marlas situated in village Kunjpura wherein they alongwith the proforma - defendant had 703/2230 share. They moved an application *before Assistant Collector Ist Grade, Ateli for partition of the suit land. After conducting the partition proceedings the land was partitioned vide order dated 1.7.2002 wherein they were provided with separate chunk of land measuring 43 kanals 5 marlas i.e. the suit land. It is submitted that thereafter the plaintiffs moved an application before AC Ist Grade, Ateli to implement the partition order dated 1.7.2002. In pursuance thereof an order for providing separate possession was passed.

(3.) THE Halka kanungo implemented the order of partition vide rapat no.471, dated 4.6.2004. In pursuance thereof mutation no.993 was also entered and sanctioned after delivery of factual possession. Since then the plaintiffs and the proforma defendant have been cultivating the suit land. However, the defendants without having any right or title therein are interfering in their peaceful possession. They are adamant in their attitude. In case they are not restrained from doing so, the plaintiffs would suffer an irreparable loss. Hence they constrained to file the suit. On notice the defendants no.1,3,4 and 7 put in appearance and filed written statement to contest the suit taking various legal objection of maintainability of the suit, cause of action, locusstandi, estoppel and that the entire partition proceedings was illegal. On merits, the contents of the plaint have been categorically opposed and denied. It has been contended that the plaintiffs cannot claim their exclusive possession over the suit land on the basis of partition as alleged. The alleged partition proceeding is totally illegal and null and void, hence is not binding on the rights of the answering defendants. It is contended that in fact father of the defendants no.1 to 7 had moved an application for partition before the AC Ist Grade, Narnaul for partition of the entire land measuring 114 kanals 12 marlas. However, the said applications was not proceeded by the applicant. They are not aware about the proceeding of the said application by the plaintiffs as alleged because no notice thereof was served upon them.