SHER CHAND Vs. PRITAM CHAND

JUDGEMENT

(1.) This appeal has been filed by the appellants (hereinafter referred to as defendants) against the judgment and decree passed by the Additional District Judge (I), Kangra at Dbaramshala in Civil Appeal No, 241/86 -65/89 dated 31 -10 -1990, whereby the judgment and decree passed by the Sub -Judge, 1st Class, Court No. 2, Palampur, District Kangra in case No, J53 of 19S4 and 156 of1984 dismissing the suit of the respondent (hereafter referred to as the plaintiff) has been upheld.

(2.) At the very outset, learned Counsel for the plaintiff has raised an objection regarding the maintainability of this appeal and in support of his submission, he has drawn the attention of this court to the definition of decree under section 2 (2) of the Code of Civil Procedure. Learned Counsel for the plaintiff has further submitted that admittedly the suit was filed by the plaintiff for an injunction whereby a decree was sought against the defendants restraining them from cutting the trees or raising the structures besides restraining them from proceeding with the correction application pending before the Settlement Officer, Kangra in respect of the suit land as according to the plaintiff, the land in suit was joint property and since he filed an application for partition of the joint holding before the Assistant Collector, 1st Grade, the same was dismissed on 4 -2 -1984 and the said order was under appeal. Defendants were stated to be clever per -sons and were threatening to remove the trees standing on the suit land besides further trying to occupy the best portion of the suit land by raising structures thereon. The plaintiff further alleged that the defendants were threatening to get the revenue entries corrected from the Settlement Officer As such the plaintiff was constrained to file the suit. The suit was contested and resisted by the defendants, who claimed themselves to be in exclusive possession of the suit land being tenants thereof since the times immemorial and had acquired the proprietary rights under the H. P. Tenancy and Land Reforms Act. It was further pleaded by the defendants that the revenue record showing the plaintiff as owner was merely a paper entry and no benefit could be derived by him from such entries. According to the defendants, they are in possession so far their own share is concerned as co -sharers and are tenants in respect of the share of the plaintiff on payment of Rs 6.75 as lagaan (rent) The defendants further alleged that on the failure of the plaintiff to prove his title to the land in question, his application was dismissed and he has no right, title or interest in the suit land since during settlement, the entries were not recorded according to the facts existing on the spot regarding possession, therefore, they had applied for correction of the revenue records Besides this, other pleas like estoppel, plaintiff having no cause of action, suit being not maintainable and the plaintiff having no locus standi as also the same being bad for non -joinder of necessary parties were also raised. In replication, these pleas were controverted by the plaintiff. On the aforesaid pleadings, the parties went to trial on the following issues : -

(1.) Whether the suit land is joint between the parties, as alleged ?