JAGDISH RAM Vs. STATE OF H.P

JUDGEMENT

(1.) The present Regular Second Appeal under Sec. 100 of the Code of Civil Procedure is maintained by the appellants against the judgment and decree, dated 17.5.2005, passed by the learned Additional District Judge, Ghumarwin, District Bilaspur (H.P), in Civil Appeal No.37/13 of 2004/1998, whereby the learned lower Appellate Court has affirmed the judgment and decree passed by the then learned Sub Judge, 1st Class, Ghumarwin, District Bilaspur, (H.P), passed in Case No.100/1 of 1992, dated 30.6.1998.

(2.) Briefly stating the facts giving rise to the present appeal are that appellants/plaintiffs (hereinafter referred to as 'plaintiffs') maintained a suit for declaration and permanent prohibitory injunction against the respondents/defendants (hereinafter referred to as 'defendants') alleging that plaintiffs are permanent residents of village Panyala, Pargana Sunnani, Tehsil Ghumarwin, District Bilaspur and they are the right holders of the village, where they have movable and immovable property in the village from the time of their forefather and the ancestral land in ownership of the plaintiffs are also situated on the bank of 'Suker Khad'. All the inhabitants of village Panyala including the plaintiffs are governed by well recognised rules of alluvion and deluvion, as recorded in Missal Hakiat Bandobast Sani of village Panyala. It is averred that land measuring 24-3 bighas comprised in Khasra No.122/1, 122/2 and 146 has been restored by the side of the land owned by the plaintiffs and the same has been coming in possession of the plaintiffs under the aforesaid custom of alluvion and deluvion rules, the plaintiffs are entitled to possess and cultivate the suit land. However, the District Collector, Bilaspur, has illegally allotted the land measuring 20-12 bighas, comprising Khasra No.117/1, 122/1, 122/2, 137/1 and 146 in favour of defendant No.2, for cultivation vide order dated 14.9.1990, subject to the payment of land revenue of Rs. 10.00, whereas the suit land was not restored by the side of land in ownership of defendant No.2 and was restored just adjoining the land in ownership of the plaintiffs. Defendant No.2 has no right, title or interest in the suit land. The order of District Collector, Bilaspur, dated 14.9.1996, order of Assistant Collector, IInd Grade, Ghumarwin, dated 30.10.1990, mutation No.325 and order of Divisional Collector, Ghumarwin, dated 25.1992 are illegal, null and void and not binding upon the plaintiffs.

(3.) No written statement was filed by defendant No.1, whereas the suit was contested by defendant No.2 raising preliminary objection with regard to maintainability, limitation, mis-joinder and non-joinder of necessary parties, jurisdiction of the Court, locus standi, valuation and estoppel. On merits, it has been contended by defendant No.2 that the suit land has been coming in his possession for the last more than 50 years, as the same was restored in that land and just adjoining to his land. His possession is also recorded in the revenue record. The proceedings under Sec. 163 of the Himachal Pradesh Land Revenue Act, were initiated against him by the revenue agency. He has denied that the suit land was restored by the side of land in ownership of the plaintiffs. Further, as per defendant No.2, plaintiffs have no right, title or interest in the suit land. It is further alleged that the suit land has been rightly allotted by District Collector, Bilaspur, in his favour vide order dated 14.9.1990 and accordingly mutation was attested in his favour.