PARAS RAM Vs. STATE OF H.P.

JUDGEMENT

(1.) HEARD and gone through the record. The appellant-plaintiff filed a suit for declaration that he was owner in possession of 4 Bighas 4 Biswas of land, situated in village Badhiyat, which had been allotted to him, under the Nautor Rules, sometime in the year 1972 and that the order of allotment of 2 Biswas area in favour of respondent- defendant No.2 Khaliti, as passed by the S.D.O., (Civil) on 16.9.1998, was bad. Though it was not very specifically stated in the plaint that 2 Biswas of area had been allotted out of 4 Bighas 4 Biswas area earlier allotted to the appellant- plaintiff, yet the tenor of the plaint indicated that the allotment in favour of respondent No.2 with regard to 2 Biswas area was challenged on the ground that this was a case of overlapping, i.e. to say that the area had been allotted out of 4 Bighas 4 Biswas already allotted to the appellant- plaintiff.

(2.) RESPONDENT - defendant, i.e. the State of Himachal Pradesh, as also the allottee respondent No. 2, took the plea that 2 Biswas area had been allotted not in village Badhiyat, where 4 Bighas 4 Biswas land of the plaintiff is situated, but in another village known by the name of Bahal Kandela. The parties went to trial. The trial court returned the finding that respondent No. 2 had been allotted land measuring 2 Biswas in village Bahal Kandela and hence the suit was misconceived. The first appellate court has affirmed the finding and the decree of the dismissal of the suit.

(3.) AN application under Order 23, Rule 1 (3), Code of Civil Procedure, registered as CMP No. 311 of 2006, has also been moved, wherein a prayer is made for the withdrawal of the suit with leave of the court to file a fresh suit on the same cause of action.