ROSE BOBI Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THIS Regular Second Appeal has been preferred by plaintiff/appellant against judgment, decree dated 27.2.2002 passed by learned District Judge, Shimla in Civil Appeal No. 102 -S/13 of 1999, whereby he reversed the judgment, decree dated 18.8.1999 passed by learned Sub Judge 1st Class, Court No. 2, Rohru in Civil Suit No. 92 -1 of 1995. The plaintiff (hereinafter referred to appellant) filed a suit for declaration to the effect that the plaintiff was absolute owner of the land comprised in khata khatauni No. 34 min/326 min, khasra Nos. 869/1, 868, 860/1 hall, sabic number 528/1, measuring 6 bigha 9 biswa, situate in Chak Melthi, Tehsil Rohru, Distt. Shimla (hereinafter referred to suit land), since it had been sanctioned as nautor in favour of his father vide order dated 20.4.1970, file No. 57/66 of the Revenue Assistant, Mahasu which order in turn has been affirmed by Deputy Commissioner, Mahasu vide appeal No. 57/8 of 70 -71 dated 28.4.1971. The defendants (hereinafter referred to as respondents) have no right, title and interest to dispossess the plaintiff/appellant from the suit land, since the nautor granted to the plaintiff/appellant has neither been cancelled nor declared void under the process of law. On these allegations, it has been claimed that the appellant is entitled for grant of patta and mutation in his favour, with further declaration that the proceedings of ejectment initiated by defendant/respondent No. 2 alongwith defendants/respondents No. 1 and 2 on dated 8.6.1995 were null and void and not binding upon the appellant.

(2.) WRITTEN statements have been filed jointly by the defendants/respondents No. 1 and 3 while separate written statement was filed on behalf of defendant/respondent No. 2. In the written statement of defendants/respondents No. 1 and 3, preliminary objections of cause of action, locus standi, jurisdiction, maintainability, non -joinder of necessary parties and bad for non -compliance of mandatory provisions of Section 80 CPC were raised. On merits, it was admitted that the father of the plaintiff was sanctioned nautor land comprised in khasra No. 860, 869 and 869/1, measuring 6 -19 bigha (old khasra No. 528/1) on the recommendation of Gram Panchayat, Chak Melthi.

(3.) THE suit was contested by defendant/respondent No. 2 by filing written statement wherein preliminary objections of grounds of valuation, cause of action, locus standi, non -joinder of necessary parties and the suit is being bad for non -compliance of Section 80 CPC were raised. On merits, it was pleaded that the plain tiff/appellant had encroached upon khasra No. 48/2, measuring 4 -3 bighas, which was Demarcated Protected Forest (DPF), as such the plaintiff/appellant had no right to possess the land. It was claimed that the land was owned and possessed by the State of Himachal Pradesh as is evident from the revenue record.