KUMEHLI AND ORS. Vs. MOTI AND ORS.

JUDGEMENT

(1.) This appeal under Paragraph 32 of the Himachal Pradesh Courts Order is directed against the decree and judgment dated 28.8.1981 Passed by Additional District Judge, Kangra Division camp at Chamba whereby the appeal of original plaintiffs Moti and Hira sons of Tarlochan was accepted and the decree and judgment dated 10.9.1979 of Senior Sub Judge, Chamba was set aside. The Senior Sub Judge had dismissed the suit of the plaintiffs which was for joint possession of the extent of half share of land measuring 68 bighas 13 biswas, comprised in Khasra No. 131, Khata Khatouni No. 8/89 situated in Mohal Drobri and land measuring 14 bighas 15 biswas comprised in Khata No. 35, Khatouni No. 84 and 85, situated in Mohal Dand, Pargana Kihar, Tehsil Churah, District Chamba (hereinafter called the land in dispute).

(2.) Original plaintiff Hira has died during the pendency of the appeal and his legal representatives Hira Singh and three others have been brought on record. Original appellant-defendant Larja son of Gopala has also died during the pendency of this appeal and his legal representatives Kumehli and five others have also been brought on record. Out of these legal representatives, one Paras Ram who was impleaded as appellant 1-d, has also died and the appellants-defendants have failed to bring his legal representatives on record. Proforma respondent-defendants Baziru was also reported to have died but his legal representatives have not been brought on record despite opportunity given to the appellants-defendants. In the circumstances, on 28.3.1994 this court ordered that appeal in respect of appellant-defendant 4 Baziru stands abated and its effect will be considered at the time of final hearing of the appeal.

(3.) Original plaintiffs Hira, Moti and Sujan claiming themselves to be joint owners of the land in dispute to the extent of one half share had filed application for petition before the Revenue officer, who vide his order dated 2.3.1972 Ex. P.C. held that he could not proceed with the partition proceedings unless the Civil Court decides the dispute in respect of the title raised by defendants Baziru and Larja that they had been in possession of the land in dispute as owners to the exclusion of plaintiffs Moti, Hira and Surjan. Thereafter on 22.4.1972 suit was filed by Moti, Hira and Surjan, during the pendency which Surjan had died without leaving behind widow or child and his name was deleted, as Moti and Hira had inherited his estate. In the joint written statement filed by defendants, they denied the allegations made in the plaint that they alongwith plaintiffs were joint owners of the land in dispute and their possession was in the capacity as such. They alleged that the plaintiffs had filed a suit for similar relief of joint possession which was dismissed in default, as such, they were estopped from filing another suit on the same cause of action, which also stood barred by limitation. They claimed themselves to be in adverse possession of the land in dispute for more than 12 years on the date of filing the suit which had ripened into their title thereof. The defence weighed with the trial court and it dismissed the suit rejecting he case of the plaintiffs that they were joint owners of the land in dispute to the extent of half share. The findings of the trial Court were upset by the first appellate Court on both Courts that the defendants had acquired possessory title over the land in dispute in adverse possession for more than 12 years before the filing of the suit and that suit was barred under Order 9 Rule 9 Civil Procedure Code. The first appellate Court has held that the possession of defendants had been in their capacity as co-owners and the cause of action in the second suit filed by the plaintiffs was different than the cause of action in the first suit. Hence, this regular second appeal by one of them Larja, and other defendants Hardeu and Baziru have been impleaded as proforma respondents.