DHAKU Vs. SHIV DUN

JUDGEMENT

(1.) This second appeal has been preferred by the appellant/plaintiff (here -after referred to as the appellant) against the judgment and decree dated 11.5.2001 passed by the learned District Judge. Solan whereby the judgment and decree dated 28.7.1999 passed by the learned Senior Sub Judge had been upheld.

(2.) Brief facts leading to the presentation of this appeal are that the appellant instituted a suit of permanent prohibitory injunction restraining the defendants/respondents from causing interference in the land comprising khata Khatauni No. 156/316. khasra No. 673. measuring 2373 square yards, situate at Mauza Lower Bazar. Solan (here -after referred to as the suit land). The case of the appellant, as made out in the plaint, is that on his application to the concerned Compensation Officer, he was held entitled to get the ownership rights of the suit land under the provisions of the H.P. Abolition of Big Landed Estates and Land Reforms Act and a Patta was issued in his favour on payment of the requisite amount of compensation. The mutation Ex.P -4 was also accordingly attested in favour of the appellant. The respondent/defendant (here -after referred to as the respondent), however got Mutation No.607 attested in his favour on 30.12.1990 in connivance with the revenue officials and at the back of the appellant. The appellant apprehended that on the strength of the said mutation, he might be forcibly dispossessed from the suit land by the respondent. It has further been averred that the mutation had been wrongly attested on the basis of the judgment dated 1.10.1986 passed by this Court wherein the suit land was not the subject matter of the controversy and the said judgment of this Court is illegal, wrong and inoperative against the right, title and interests of the appellant and he is not bound by the said judgment as the same had been passed after the conferment of the ownership rights over the appellant by the Compensation Officer. Hence the suit.

(3.) The respondent No.l contested the suit. In his written statement he raised preliminary objections that the suit was not maintainable by virtue of the provisions of Order 2 Rule 2 and Section 11 of the Code of Civil Procedure, (hereafter referred to as the Code), principle of stopped and waiver, that the suit was not properly valued for the purposes of Court fee and jurisdiction and was barred by limitation and that the Civil Court had no jurisdiction in the matter. On merits, it has been averred that the appellant was never a tenant over the suit land and no relationship of tenant and landlord ever existed between the appellant and the respondent. The mutation in favour of respondent No. 1 had rightly been attested on the basis of the judgment dated 1.10.1986 passed by this Court which has become final and is binding on the parties. The perform respondent defendant Shankar Dass also filed a separate written statement who denied the claim of the appellant as made out in the plaint and claimed that the suit land is jointly owned and possessed by him and the appellant.