BRAHAM DASS Vs. TULSI DASS

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 03.04.2002 passed by the learned Additional District Judge, Solan, in Civil Appeal No. 30 -S/13 of 2001 whereby he accepted the appeal filed by the plaintiffs and set aside the judgment and decree dated 01.08.2001 passed by the learned Sub Judge Ist Class, Arki, in Civil Suit No. 118/1 of 1994.

(2.) THE facts in brief are that the plaintiffs/respondents had filed a suit for declaration with consequential relief of permanent prohibitory injunction pleading therein that the plaintiffs are owners in possession of land comprised in Khasra No. 196, measuring 4 biswas situated at Arki as per decision passed by the learned Sub Judge Ist Class, Arki vide its judgment and decree passed in Civil Suit No. 24/1 of 1982 decided on 30.12.1983. It was averred by the plaintiffs/respondents that that the defendants/appellants without any right, title and interest are threatening to raise construction over the vacant portion of the land appurtenant to the cowshed which is Katcha and in possession of the defendants/appellants, who have not been held owners in possession of the land under the cowshed by the Civil Court and the defendants have got no right, title or interest to change the nature of the structure because they are not the owners of the land under the structure and hence in permissive possession of the cowshed which is katcha one. The defendants without any right, title or interest have started changing the nature of the cowshed and are threatening to make it permanent by engaging labour and for that purpose the defendants/appellants on 14.06.1994 stacked sand near the cowshed and they are also threatening to construct the vacant land appurtenant to the cowshed. The plaintiffs/respondents further averred that the defendants/appellants have also got the mutation entered in their favour contrary to the judgment and decree of the Civil Court which is void and the plaintiffs/respondents are not bound by the illegal orders of the Revenue Officers and an appeal against the mutation is pending which has been adjourned sine die by the Collector and the Patwari in league with the defendants/appellants has incorporated note of mutation in the jamabandi in violation of pendency of appeal and stay orders. It was also averred by the plaintiffs/respondent that during the pendency of the suit and despite stay of operation of mutation No. 967, the Patwari Halqua made change in the jamabandi for the year 1994 -95 which fact came to their knowledge on 24.09.1998 from the settlement authorities of Arki and the plaintiffs/respondents obtained the copy of the same and they had also informed the A.C.2nd Grade, Arki vide application dated 22.01.1997 that the Collector had stayed the operation of mutation No. 967 and thereafter an application was also moved to the Settlement Officer, Arki under registered cover apprising him the position on 26.05.1998. The plaintiffs/respondents averred that the Revenue Officers have attested the mutation illegally and arbitrarily during the pendency of the suit and prayer for decreeing the suit was made.

(3.) PLAINTIFFS /respondents filed replication and reasserted and reaffirmed the averments made in the plaint.