RAM SWAROOP Vs. BELI RAM

JUDGEMENT

(1.) This Regular Second Appeal has been instituted against the judgment dated 5.10.2005, rendered by learned District Judge, Solan, Himachal Pradesh in C.A. No. 56-S/13 of 2005.

(2.) "Key facts" necessary for adjudication of the present appeal are that the respondent-plaintiff (hereinafter referred to as 'plaintiff' for convenience sake) filed a suit against the appellantdefendant (hereinafter referred to as 'defendant' for convenience sake) for permanent prohibitory injunction. According to the plaintiff, he was joint owner in possession alongwith brothers Nanak Chand and Himat Singh of the land comprised in Khata Khatauni No. 43/47, Khasra No. 941/113 measuring 4-1 Bigha situate in Mauza Uchagoan, Pargana Kunihar, Tehsil Arki, District Solan, HP. Defendant was a stranger to the suit land having no right, title or interest over the suit land. Civil Suit No. 176/1 of 1997 was filed in the court against defendant for permanent prohibitory injunction not to raise construction. Matter was settled in the Lok Adalat on 18.11.2000. Consequently, the plaintiff withdrew the suit. However, despite an undertaking given to him on 5.1.2001, defendant started ploughing one of the fields of suit land forcibly. Suit was contested by the defendant. According to the defendant, suit land bearing Khasra No. 941/113 measuring 40-15 bigha, alleged to be part of Khasra No. 113 was recorded under the ownership of defendant alongwith others to the extent of 8 shares out of 72 shares. Partition proceedings were initiated by Tehsildar Arki exercising the powers of Assistant Collector 1st Grade, mutation of partition was entered as mutation No. 832 dated 14.12.1990. Partition was not complete because warrant of possession was not executed. Learned Civil Judge (Junior Division) framed issues. He allowed the suit on 23.6.2005. Defendant filed an appeal before the District Judge. He dismissed the same on 5.10.2005. Hence, this appeal.

(3.) The Regular Second Appeal, was admitted on 1.5.2007, on the following substantial question of law: