MAJALSI & OTHERS Vs. ZULMI RAM (SINCE DECEASED)

JUDGEMENT

(1.) This appeal has been filed by the appellantsdefendants (hereinafter referred to as the 'defendants') against the judgment and decree dated 10.2.2006, passed by learned District Judge, Hamirpur, H.P., affirming the judgment and decree dated 29.1.2004, passed by learned Civil Judge(Junior Division), Court No.1, Hamirpur, H.P., whereby the suit filed by the Respondent-plaintiff (hereinafter referred to as the 'plaintiff) has been decreed.

(2.) The facts necessary, as emerged from the record, necessary for adjudication of the case are that the plaintiff filed a suit for permanent prohibitory injunction against the defendants on the allegation that he had been owner in possession of land comprised in Khata No.51, Khatauni No.127, Khasra Nos.901, 903, 909, 911, 916, 917, 918, 932, 933, 934, 935, 937, 941, 942, kitta 14, measuring 10 Kanals 9 Marlas, as per Jamabandi for the year 1990-91, situated in village Rathwani, Mauza Mehlta, Tehsil Bhoranj, District Hamirpur, H.P. (hereinafter referred to as the 'suit land'). It is averred that the suit land had been allotted to the plaintiff by the State of Himachal Pradesh on which the defendants had started interfering with the ownership and possession of the plaintiff over the suit land w.e.f. Ist week of May, 2000. They had been requested not to do so, but without any result. The defendants are sought to be restrained from interfering in the ownership and possession of the plaintiff over the suit land by issuance of a decree of permanent injunction.

(3.) Defendants, by way of filing written statement, raised preliminary objections on the grounds of maintainability, estoppel, non-joinder, limitation, want of cause of action, principles of resjudicata and valuation in preliminary objections. On merits, the defendants had admitted the allotment of the suit land in favour of the plaintiff by the State of Himachal Pradesh. It is alleged that the possession of the suit land had not been delivered to the plaintiff and the defendants and other estate right holders had been in possession of the suit land. It is further alleged that the defendants had instituted a Civil Suit regarding the suit land against the plaintiff and the State of Himachal Pradesh, which was dismissed by both the Courts below and against the said judgments and decrees, the defendants had instituted Regular Second Appeal bearing RSA No.488 of 1990 against the plaintiff and State of Himachal Pradesh before this Court. It is further alleged that the said RSA No.488 of 1990 was allowed by this Court vide judgment and decree dated 22.07.1999 (mark 'A'), in which this Court had observed that "the plaintiffs-appellants (defendants herein) shall not be dispossessed from the suit land, unless already dispossessed, except, in due course of law". It is further alleged by the defendants that this Court had directed the Collector to dispose of the proceedings under the H.P. Village Common Land (Vesting & Utilisation) Act, 1974, (hereinafter called the 'Act'). As such, the plaintiff was not entitled to any relief much less to the discretionary relief of permanent prohibitory injunction and the defendants were entitled to special costs under Section 35-A of the Code of Civil Procedure from the plaintiff.