BIMLA KUMARI Vs. VED PARKASH

JUDGEMENT

(1.) This appeal under Order 43, Rule 1(U) of the Code of Civil Procedure has been filed against the order! passed by the learned Additional District Judge, Sirmaur in Civil Appeal No. 20 -N/13 of 2002 on 29.11.2003 whereby he has set aside the judgment and decree dated 28.2.2002 passed by the learned Senior Sub Judge, Sirmaur in C.S. No. 95/1 of 2000 and remanded the case for fresh decision. The brief facts of the case are that the present appellants and Performa -respondents 2 and 3 (hereinafter referred to as the plaintiffs) had filed the suit for injunction against defendant No. 1 (hereinafter referred to as the defendant).

(2.) The case set up by the plaintiffs was that their predecessor -in -interest late Shri Narain Singh was co -sharer in Shamlat land and had been in continuous possession of 2 -6 bighas of such land comprised in Khasra No. 661/342/1. It is further alleged that Narain Singh had erected a building in the suit land and he alongwith his sons was carrying on the work of Jaswal Baan Udyog1. It was alleged that the proceedings under Section 163 of the Land Revenue Act had been initiated against one of the plaintiffs and during the bourse of these proceedings, a tatima was prepared by the then Patwari halqua showing the area, which was under the occupation of the plaintiffs. These proceedings which were filed against plaintiff Jaswal Singh were dropped when it was found that the land was in the occupation of his father Narain Singh. The case of the plaintiffs further is that first Narain Singh and thereafter the plaintiffs have been permitting small traders to set up temporary shops on the said land during Mela days especially during the Navratras. According to the plaintiffs, they have been conducting business over the suit land by letting out such shops.

(3.) It has been further averred that some of the villagers had started interfere in the suit land and, therefore, Narain Singh predecessor -in -interest of the plaintiffs had instituted Suit No. 110/1 of 1988 in the Court of Senior Sub Judge, Sirmaur. This suit was decreed by the Sub Judge, 1st Class Nahan vide judgment Ex. P3. The respondents in the said suit were restrained from interfering in the possession of the plaintiff Narain Singh in Khasra No. 661/342/1 measuring 2 -6 bighas, as depicted in tatima appended with the plaint. Appeal against this decree was dismissed by the Additional District Judge, Sirmaur at Nahan vide judgment Ex.P5. The Regular Second Appeal filed by the defendants in the said case was dismissed vide judgment dated July 15, 1998 Ex. RC.