RAJESH KUMAR Vs. KULDEEP SURINDER PAL

JUDGEMENT

(1.) By way of this appeal, the predecessor of appellants assailed the judgment passed by the Court of learned Additional District Judge-1, Una, H.P., passed in Civil Appeal No. 88 of 2011, titled Surinder Pal and others Vs. Rajesh Kumar, in terms whereof learned Appellate Court while setting aside the judgment and decree passed by the learned Trial Court remanded the case back to the learned Trial Court by framing an additional issue for fresh adjudication in totality.

(2.) Brief facts necessary for the adjudication of the present appeal are that respondents herein filed a suit for permanent prohibitory injunction against the defendant Rajesh Kumar, inter alia, on the ground that land comprised in Khewat No. 65 min, Khatoni No.97, Khasra No. 439, 440, 441 and 444, measuring 222-25 berg decimeters, situated at Village Upmohal Gagret, Tehsil Amb, District Una, H.P., was jointly owned and possessed by the parties along-with other co-sharers. There was certain fruit trees standing thereupon. The suit land was valuable and was also having commercial value being adjoining to the link road and near the main Gagret Chowk and Bazaar. The predecessor in interest of the defendant had illegally and wrongfully got himself entered in the revenue record as a "Gair Marusi Bashara Parta Malkan". Said entries were not made after following any due procedure. The suit land continued to be jointly owned and possessed by the plaintiffs along-with other co-sharers. Neither the defendant nor his predecessor ever remained present over the suit land. In the garb of the said wrong revenue entry, the defendant intended to grab the suit land forcibly and intended to change the nature of the suit land by cutting the fruit trees and about a week before the filing of the suit the defendant had started collecting construction material, taking advantage of the ill health of the plaintiffs. As defendant did not heed to the requests so made by the plaintiffs, hence the suit.

(3.) The defendant contested the suit by, inter alia, taking the stand that the suit was not maintainable and the suit was also time barred. It was also the stand of the defendant that the Civil Court has no jurisdiction to try the suit. The suit was also resisted on the ground that it was bad for non-joinder of necessary parties. According to the defendant, the possession of the suit land was with the predecessor in interest of the defendant as a non-occupancy tenant on payment of rent. With the operation of law, proprietary rights should conferred upon the predecessor in interest of defendant, who thus became owner in possession of the suit land. After his death, the defendant acquired the said status and as he was the owner of the suit land, therefore, the plaintiffs were not entitled for the relief being prayed.