BALA RAM Vs. SIMRU RAM

JUDGEMENT

(1.) The present appeal is directed against the judgment and decree dtd. 9/1/2004, passed by the learned District Judge, Kinnaur, Civil Division at Rampur Bushahr, vide which the appeal filed by the appellants (defendants before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

(2.) Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking permanent prohibitory injunction for restraining the defendants from interfering with the land comprised in Khata/Khatauni No. 62/205 min, Khasra No. 55, measuring 0/14/74, situated in Mauja Molagi, Tehsil Rampur, District Shimla, H.P. (hereinafter referred as the suit land). It was pleaded that the suit land was allotted to the plaintiff in the partition proceedings. Salmu, (defendant No.1) and other cosharers agitated the matter up to the Commissioner, Shimla. The objections raised by them were rejected by the Revenue Courts. The possession of the suit land was delivered to the plaintiff on 26/5/2000 as per the order passed by learned AC-2nd Grade, Rampur. Defendant No. 1 filed a suit for possession under Sec. 6 of the Specific Relief Act, thereby admitting the possession of the plaintiff. Defendants threatened to interfere with the possession of the plaintiffs and to take forcible possession of the suit land. They were requested not to do so but in vain. Hence, the suit was filed to seek the reliefs mentioned above.

(3.) The suit was opposed by filing a written statement, taking of preliminary objection regarding the suit being barred under Sec. 10 CPC in view of the pendency of the earlier suit between the parties. The contents of the plaint were denied on merits. It was admitted that the suit land was allotted to the plaintiff during the partition. It was asserted that no instrument of partition was prepared and the partition could not be said to be complete without the instrument of partition. The plaintiff did not acquire the ownership of the suit land. The plaintiff is not in possession and in case the possession is proved, he is liable to restore the possession to the defendants; therefore, it was prayed that the suit be dismissed.