SHIV RAM Vs. STATE OF HP

JUDGEMENT

(1.) This Revision Petition under Section 115 of the Code of Civil Procedure, 1908 is directed against the order dated 1.9.1999 passed by the learned District Judge, Shimla in Civil Miscellaneous Appeal No. 35 -S/14 of 1999 whereby an appeal preferred by the petitioner/plaintiff (hereinafter referred to as the plaintiff) against the order dated 15.6.1999 passed by the learned Sub Judge 1st Class (II), Shimla dismissing the application of the) plaintiff under Order 39 Rules 1&2 CPC for grant of temporary injunction I has been dismissed.

(2.) Brief facts leading to the presentation of the present petition are that plaintiff has filed Civil Suit No. 45/1 of 1999 against the respondents/ defendants (hereinafter referred to as the defendants) seeking declaration that he is owner in possession of the land comprising khasra Nos.866/2, 870/1, 701/1, 703/1, 893/1, 1128/2 and 1175/2 measuring 61 -2 bighas situate in Mauja Badhai, pargana Jajhot, Tehsil and District Shimla (hereinafter referred to as the suit land) and that the entries in the Revenue Records showing the State of Himachal Pradesh as the owner of the suit land and the residents of the area in the enjoyment thereof are wrong, illegal, void and of no consequence. He has further claimed the relief of permanent prohibitory injunction restraining the defendants from interfering in his possession over the suit land. It is averred in the plaint that the suit land was allotted to the father of the plaintiff by the ruler of rest while State of Keonthal by way of Nautor on payment of Najrana. On an application preferred by his father the Revenue Filed Staff carried out the demarcation of the suit land on the spot and put the father of the plaintiff in possession thereof, however, the entries in the revenue records were not accordingly changed and instead the State of Himachal Pradesh continued to be shown as owner of the suit land. After the death of his father the plaintiff claims to have succeeded to the suit land. It is also claimed that he has planted a number of plants thereon and has been enjoying the usufruct thereof since 1949. It is also the case of the plaintiff that an order for ejectment of his father from the suit land was passed on 10.7.1962 under the provisions of Section 163 bf the H.P. Land Revenue Act. however, such order was not executed with the result that the plaintiff continued in possession of the suit land. It is, therefore, claimed that in case the grant of the suit land in favour of the father of the plaintiff by the ex ruler of erstwhile estate of Keonthal is not proved in that event he has acquired title by prescription/lapse of time because of his continuing in hostile and uninterrupted possession of suit land for more than 30 years. In December, 1998 defendants Society and the Contractor (respondents 2 and 3) started bighas of land forming part of khasra No. 703 claiming that this land has been leased by the defendant State in favour of the defendant Society for a period of 99 years. Hence, the suit. It was alongwith the plaint that an application under Order 39 Rules 1 & 2 CPC also moved by the plaintiff praying for temporary injunction restraining the defendants from interfering in his possession over the suit land till the disposal of the suit.

(3.) Defendant Society filed written statement and contested the claim of the plaintiff. In the written statement the claim of the plaintiff regarding his possession over the suit land and the allotment thereof to his father by the ruler of the erstwhile state of Keonthal by way of Nautor has been denied. It has been claimed that land measuring 2 -13 bighas comprising khasra No. 1473/1349/703/1 had been allotted to the defendant society by the Defendant State for construction of flats for its members and thus the claim as made out by the plaintiff in his plaint has been denied. For similar reasons the claim for temporary injunction was also contested.