NAND KUMAR Vs. GAJINDER SINGH

JUDGEMENT

(1.) THIS revision petition is preferred by the defendants against the order, dated 21.2.2005 passed by the learned Civil Judge (Senior Division), Rampur Bushahr, District Shimla in case No. 84 -1/2003 whereby he allowed the application filed by the plaintiff under Order 23 Rule 1(3) read with section 151 CPC and permitted the plaintiff to withdraw the suit with liberty to file afresh on the same cause of action subject, however, to the law of limitation and on payment of Rs. 1000/ - as cost to the defendants.

(2.) THE facts in brief may be noticed. The plaintiff filed an application for withdrawal of the suit on the ground that there was formal defect in the suit inasmuch as the plaintiff could not annex the necessary Tatima in respect of the encroached portion of the suit land as the same was not supplied to him by the concerned Patwari and in absence thereof it would not be possible to pass an executable decree. It was further alleged that he had already approached the settlement authorities for correction of wrong revenue entries prepared during the recent settlement and that the same was pending for adjudication.

(3.) IN so far as the main dispute inter se the parties is concerned, the same is with respect to the boundaries wherein land denoted by khasra No. 152 belongs to the plaintiff and other co -sharers, while the land comprised in khasra No. 147 belongs to the defendants. Both the lands are situated adjacent to each other. The case of the plaintiff is that defendants have encroached upon a portion of his land while raising construction, whereas the defendants have denied this aspect of the case and have tried to show that the construction raised by them is well within their land.