LEETHO Vs. CHAMELO

JUDGEMENT

(1.) The appellant in this appeal is the plaintiff, whereas, respondents are the defendants but respondent No. 1 is the contesting defendant, who felt aggrieved by the decree and judgment dated 30/6/1990 passed by sub-judge 1st class, Dalhousie and preferred an appeal against them before the District Judge, Chamba Division Chamba, who has accepted his appeal vide judgment and decree dated 31/7/1993 and set aside the decree and judgment dated 30/6/1990 of Sub-Judge 1st Class with the result the suit of the plaintiff stands dismissed, whereas it was decreed by Sub-Judge 1st Class and the partition order dated 21.9.1983 and mutation entry No. 467 dated 21/2/1986 were declared illegal and void and not binding on his rights. Sub Judge 1st Class had also restrained the defendants by decree of permanent prohibitory injunction from interfering in the possession of the plaintiff in Khasra Nos. 1632/406, 1636/407, 425 and 1646/472, Kita 4 Khata Khatauni No. 69/98 min, situate in Mohal Gola, Pargana Bhatti Tikri. Hence the present regular second appeal under Section 100, Code of Civil Procedure.

(2.) This Court has heard learned Counsel for the parties and gone through the record.

(3.) The following substantial questions of law arise in the present appeal; 1. Whether the first appellate Court has erred in holding that the Civil Court has no jurisdiction to entertain the civil suit of the plaintiff in the absence of any such preliminary objection taken by defendant No. 1 Chamelo in his written statement, issue framed, evidence adduced during trial and ground taken in the appeal? 2. Whether the first appellate Court has misread and mis-interpreted the pleadings and evidence on record, oral as well as documentary to come to the conclusion that the land in dispute was not partitioned as alleged by the plaintiff? 3. Whether the first appellate Court, has misread and misinterpreted the order dated 21.9.1983, Ex. P.C. to come to the conclusion that it was rightly passed ex parte against the plaintiff as he had failed to put in appearance in the partition proceedings before Assistant Collector 1st Grade?