KRISHAN KUMAR Vs. KALAWATI

JUDGEMENT

(1.) By way of instant appeal filed under Sec. 100 of CPC, challenge has been laid to judgment and decree dtd. 13/4/2017, passed by Additional District Judge-1, Shimla (camp at Rohru), District Shimla, H.P., in Civil Appeal No. 8-R/13 of 2016, affirming the judgment and decree dtd. 23/9/2014, passed by learned Civil Judge (Junior Division) Jubbal, District Shimla, H.P., in Civil Suit No.20-I of 2018, titled Sh. Krishan Kumar versus Smt. Kalawati and another, whereby suit for declaration and injunction having been filed by the appellants-plaintiffs(hereinafter referred to as the plaintiffs), came to be dismissed on the ground of maintainability as well as on the point that the plaintiffs have failed to prove their adverse possession.

(2.) Precisely, the facts of the case as emerge from the record are that the plaintiffs filed a suit for declaration and injunction against the respondents-defendants (hereinafter referred to as the defendants) in respect of land comprised in Khata No.46/45, Khatauni No.65, Khasra Nos. 12, 13 and 14, area measuring 0/93/96 hectares, situate at Chak Kharapathar, Tehsil Jubbal, District Shimla, H.P., as per jamabandi for the year 2002-03 ( hereinafter referred to as the suit land). Plaintiffs claimed that the suit land is in joint ownership of the parties, but in the column of possession, they have been shown in exclusive possession and as such, defendants have no legal right, title and interest upon the suit land as it has been coming in their peaceful possession.

(3.) Aforesaid claim put forth by the plaintiffs came to be resisted/ refuted by the defendants, who in their written statement specifically took objection with regard to maintainability of the suit. Defendants claimed before the court below that prior to filing of suit at hand, plaintiffs and proforma-defendants filed civil suit No.39-1- 2007 on the same and similar cause of action and same was dismissed as withdrawn on 3/5/2007. Apart from above, defendants also contested the suit of the plaintiffs on merits claiming therein that in partition proceedings, Khasra No.2102/47/1, measuring 8 bighas 13 biswas and Khasra No.2102/47/1, measuring 4 bighas was allotted to Mohan Lal and others, who was father of the replying defendants and mutation was attested on 13/12/1979.