(1.) The appellant, who was defendant No.2, before the learned District Judge, Shimla, H.P., has preferred the present first appeal against the judgment and decree dated 30.7.2012, passed in Civil Suit No. 18-S/1 of 2009/05, whereby the suit of the plaintiffs has been decreed. The facts, in brief, may be noticed.
(2.) The respondents herein - Shiv Dutt and Surat Ram (hereinafter referred to as the plaintiffs) filed a suit for declaration with consequential relief of permanent and mandatory injunction against the defendants stating therein that they had been in possession of land described in Kh. No. 189/3/1 and 262/1, measuring 17 Bigha 18 Biswas in revenue estate Sabhar (Jubbal). The plaintiffs claimed to have developed the aforesaid land by planting apple orchard. The defendant No. 2 is said to be owner in possession of Kh. No. 28 measuring 9 the biswas in revenue estate Jhalri Kanot, Kh. No. 100/1, 101 and 108/1 measuring 8 bigha in revenue estate Sabhar and Kh. No. 485/2, 485/2/1, measuring 10 bighas 6 biswas in revenue estate Malog. The defendant No. 2 had applied for exchange of his aforesaid land with the land in suit to the authorities claiming that the said land of defendant No. 2 had washed away in floods in 1978 and not fit for cultivation. On 30.12.1982, District Collector/Deputy Commissioner allotted the land in question to defendant No. 2, which order was challenged in review by the plaintiffs on the ground of illegality. The District Collector vide order dated 31.3.1983, cancelled the exchange, which order was also upheld in appeal by the Commissioner on 21.8.1985. On this, defendant No. 2 filed a Civil Writ Petition before the High Court being CWP No. 989 of 1985 which came to be disposed of on 24.4.1990, directing the Commissioner to reconsider the question of exchange in favour of defendant No. 2. In pursuance to the direction given in the Writ Petition, the Commissioner vide order dated 14.11.1991, proceeded to uphold the exchange, which according to the plaintiffs was without conducting the proper inquiry, wrong, illegal and also fraud and by misrepresentation of proper facts. It is further averred in the suit by the plaintiffs that the land of defendant No. 2 never washed away in floods at any point of time and said defendant continued to usufruct that land and the possession of the said land was stated to have been delivered to the State in papers only. It is further averred that the plaintiffs had been unauthorisedly and illegally, dispossessed of the suit land. Alternatively, the defendant No. 2 was sought to be dispossed of his land stated to have been given in exchange to defendant No. 1. The plaintiffs had also stated that defendant No. 2 was liable to pay use and occupation charges of the land in suit/his land to the State and permanent and mandatory injunction had been claimed against the defendants.
(3.) The State/respondent No. 1 therein had resisted the suit on the ground of limitation and valuation stating that the plaintiffs had instituted suit for declaration of their ownership and possession of the suit land against the defendants. It is alleged that the plaintiffs had not acquired title to the suit land by adverse possession. Not only this, it is averred that the suit is hit by res judicata, as the Civil Suit No. 28/1 of 1992 of plaintiff No. 1 Shiv Dutt had been dismissed by learned Sub Judge First Class, Rohru on 31.10.1994 and Civil Suit No. 48/1 of 1999/98 of plaintiff No. 2 had been dismissed on 29.4.2000 by Sub Judge First Class, Jubbal. Further the defendant No. 1 claimed its ownership and possession over the land in suit and alleged that plaintiffs had unauthorisedly and illegally encroached upon the same and they have been ejected in accordance with law. The suit land had been rightly given in exchange to defendant No. 2, possession whereof was delivered to him and mutation No. 71 had been sanctioned on 28.9.1998. Defendant No. 1 denied any fraud or mis representation on the part of defendant No. 2 and admitted him to be owner in possession of the land in suit and denied the liability of paying the use and occupation charges thereof from him and also challenged the locus standi of the plaintiffs. Defendant No. 2 also adopted the stand taken by defendant No. 1.
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