PAWAN KUMAR Vs. RAJINDER LAL

JUDGEMENT

(1.) THIS appeal is directed against the impugned judgment and decree, rendered on 3.12.2002 by the learned Additional District Judge -II, Kangra at Dharamshala, H.P., in Civil Appeal No. 85 -K/99 whereby, the learned District Judge allowed the appeal preferred by the respondent/plaintiff and reversed the judgment and decree of the learned trial Court rendered on 24.8.1999 in Civil Suit No. 278/91/98.

(2.) BRIEFLY stated the facts of the case are that the plaintiff and defendants No. 4 and 8 are the owners in possession of the land comprising in khata No. 24 min, Khatoni No. 37 min, khasra Nos. 505/189, 506/189 and 508/193, kita 3 measuring 0 -01 -08 hectares, situated in Mohal Ustehar, Mauza Kothi Jhikli, Tehsil and District Kangra (hereinafter referred to as the suit land) and are entitled to remain so in future as well, therefore, the order of Settlement Officer, Dharamshala, passed in file No. 516/SO, dated 31.1.1976 and on its basis mutation No. 22, dated 5.10.1976 attested in favour of defendants No. 1 to 3 is wrong, null and void as well as without jurisdiction, therefore, is liable to be set aside. The plaintiff has prayed for the relief of permanent prohibitory injunction against defendants No. 1 to 3 for restraining them from interfering in his possession over the suit land. In the alternative, the plaintiff has sought the relief of possession of the suit land, in case the defendants No. 4 to 8 are found in possession of the suit land or defendants No. 1 to 3 are found in possession or they succeed in taking possession of the suit land during the pendency of the suit. It has been averred that the suit land was in the recorded ownership and possession of Dina Nath, the predecessor -in -interest of plaintiff and defendants No. 4 and 5 and Tulsi Ram, the predecessor -in -interest of defendants No. 7 and 8 and One Mohan Lal, who sold his share to the plaintiff and defendant No. 4. During the settlement took place in the year 1973 -74, the suit land comprised in khasra No. 189/1, measuring 0.00.55 hectares, khasra No. 189/2 measuring 0 -00 -10 hectares and Khasra No. 192/1 measuring 0 -00 -43 hectares, total are measuring 0 -01 -08 hectares, was wrongly ordered to be included in the ownership of defendants No. 1 to 3 vide mutation No. 22 attested on 5.10.1976. It has been further averred that this mutation was attested in pursuant to the order of the Settlement Officer dated 31.1.1976 which was rendered without hearing the plaintiff and defendants No. 4 to 8, as such, the same is not binding upon them and the same deserves dismissal. The suit land is the Agwahra and Pichwarha of the plaintiff and defendant No. 4 and the same is in their possession since long. The defendants contested the suit and filed separate written statements. Defendant No. 1 to 3 in their written statement have taken preliminary objections inter alia estoppel, maintainability, cause of action, non -joinder of parties etc. On merits, it has been pleaded that the suit land was the subject matter of consolidation. The predecessor -in -interest of the plaintiff and defendants No. 4 and 5 and others, filed a revision before the State Government, as provided under the said Act and there, re -allotment of the land comprising in khasra No. 221 and 222 was ordered vide order dated 13.1.1970. It has been further pleaded that the order dated 13.1.1970 of State Government was executed and implemented, therefore, the same is also binding upon the plaintiff. It has been further averred that in the meanwhile, the settlement also started in the area and Settlement Officer gave effect to the already existing order passed by the consolidation authorities and the mutation No. 22, has been attested in pursuance of the order passed by the consolidation authorities. It has been averred that no new order has been passed by the Settlement Officer. Defendants No. 1 to 3 have claimed possession over the suit land and have denied the right, interest and title of the plaintiff and defendants No. 4 to 8 over the suit land.

(3.) DEFENDANTS No. 4 and 5 by filing their joint separate written statement have admitted the case of the plaintiff as set out in the plaint and they have prayed that a decree be passed in his favour.