DURGA DASS Vs. MATHU

JUDGEMENT

(1.) Appellant is the defendant whereas respondent is the plaintiff and they will be referred to as such in this judgment. The defendant is aggrieved by the judgment dated 21.9.2000 passed by the Additional District Judge, Shimla, whereby the appeal of the plaintiff was allowed and the decree and judgment dated 2.7.1996 of the Senior Sub Judge, Shimla, was set aside and the case was remanded to him with the direction to decide the same afresh in the light of the observations made in the impugned judgment. The Senior Sub Judge had dismissed the suit.

(2.) In the suit claiming himself to be owner in possession, the plaintiff had prayed for decree of permanent prohibitory injunction restraining the defendant from interfering in any manner with his ownership and possession over the suit land which is comprised in Khasra No. 297, measuring 6 -12 bighas, situated at mouza Manner, Tehsil and District Shimla. The case of the plaintiff was that on the basis of wrong revenue entries recording him as non -occupancy tenant, the defendants had been threatening to interfere with his ownership and possession over the suit land. On the other hand, the case of the defendant on merits was that he had been recorded in possession as Gair Maurisi for the last more than 15 years to the knowledge of the plaintiff as a result of which he has also acquired proprietary rights under the H.P. Tenancy and Land Reforms Act. It was also pleaded by the defendant that the plaintiff had sold his entire ancestral land in village Mannar, Tehsil and District Shimla, in the year 1964 to the defendant and also put him in possession of the suit land and later on consented to get him recorded as Gair Maurisi1 and during proceedings before the Assistant Collector IInd Grade he further consented for conferment of proprietary rights in his favour. The defendant also took number of preliminary objections.

(3.) On the pleadings of the parties, the following issues were framed: - (1) Whether the plaintiff is entitled to injunction prayed for? OPP. (2) In case the plaintiff is found to have dispossessed during the pendency of the suit, whether the plaintiff is entitled to the decree for possession ? OPP. (3) Whether this Court has no jurisdiction as alleged ? OPD. (4) Whether the plaintiff is estopped from filing the suit as alleged V OPD. (5) Whether the plaintiff has no cause of action ? OPD. (6) Relief.