DAULAT RAM Vs. JANKI DEVI

JUDGEMENT

(1.) The Defendant-Appellant Daulat Ram is aggrieved by the decree and judgment dated 2nd September, 1987 passed by the District Judge, Solan and Sirmaur Districts at Nahan, whereby the appeal of Respondent-Plaintiff Smt. Janki Devi was dismissed as withdrawn on the ground that her application under Order 23, Rule 1, Code of Civil Procedure for withdrawal of the appeal as well as the suit with permission to file a fresh suit stood allowed by a separate judgment of that day By the impugned decree and judgment, the decree and judgment dated 11th January, 1984 of Senior Sub-Judge, Solan was also set aside.

(2.) The Respondent-Plaintiff Smt. Janki Devi had filed a civil suit for declaration that mutation No. 142 dated 18th December, 1975 in respect of the land in dispute, as described in para 2 of the judgment of the District Judge, is illegal, null and void and not binding on her. She had also asked for relief of permanent injunction for restraining the Defendants in the suit from interfering in her possession over the land in dispute. She had claimed herself as mortgagee as well as tenant in possession of the land in dispute. In fact, initially, the suit was filed by the Respondent-Plaintiff Smt Janki Devi alongwith one Smt Shanti Devi, who was permitted to withdraw from the suit on her application dated 30th June, 1976, which she had moved jointly with Appellant-Defendant Daulat Ram admitting the gift in his favour and also his possession over the land in dispute.

(3.) Feeling aggrieved the Respondent-Plaintiff filed an appeal against the decree and judgment of the trial Court. During the pendency of the appeal, she moved an application under Order 6, Rule 17, Code of Civil Procedure for amendment of her plaint to take additional plea that the Appellant-Defendant Daulat Ram had trespassed over a part of the land in dispute measuring 1 Bigha 7 Biswas in the month of October, 1986 and had also cut grass therefrom. She prayed for another relief of recovery of possession of that portion of the land in dispute and also for mesne profits with effect from the date of her dispossession. The application was resisted and ultimately dismissed by order dated 20th March, 1987 by the District Judge holding the prayer of amendment as mala fide to avoid the decree passed by the trial Court.