PARSO Vs. DUMNU RAM AND OTHERS

JUDGEMENT

(1.) By way of this appeal, the appellant has challenged the judgment and decree passed by the Court of learned District Judge, Chamba, in Civil Appeal No. 1 of 2006, dated 18.04.2007, vide which, learned Appellate Court allowed the appeal so filed before it by the present respondents and set aside the judgment and decree passed by the Court of learned Civil Judge (Sr. Divn.) Chamba, in Civil Suit No. 38 of 2001, dated 30.09.2005, whereby learned trial Court had dismissed the suit of the plaintiff and had allowed the Counter Claim of the defendant therein i.e. present appellant.

(2.) Brief facts necessary for the adjudication of this appeal are that respondent/plaintiff (hereinafter referred to as 'plaintiff') filed a suit for declaration and permanent prohibitory injunction against the appellant/defendant on the ground that defendant No. 1 was not son of Moti but he in fact was son of Nirmal and suit land which was entered in the name of Kali, widow of Thelu was actually in possession of defendant No. 2, who had delivered the possession of same to the plaintiff. As per the plaintiff, Kali succeeded her husband Thelu after his death as a 'Gaddi' widow having limited rights in the suit property. Thereafter she created tenancy in favour of defendant No. 2 which was contrary to undertaking given by her in Civil Suit No. 99 of 1984 which was filed by father of the plaintiff against defendant No. 2 Paras Ram and Kali. According to the plaintiff, though the said suit filed by his father was dismissed but in appeal the same was allowed wherein it was declared that plaintiff and proforma defendant Jobnu were owners and entitled for possession of the suit property therein. Regular second appeal filed against the judgment so passed by the learned District Judge was also dismissed. It was further the case of the plaintiff that after the death of Jobnu, who died on 02.05.1992, defendant No. 1 with a view to create mischief moved an application requesting for substitution of his name in place of Jobnu and the said application of his was allowed. It was further the case of the plaintiff that defendant No. 2 knew that defendant No. 1 was the son of Nirmal. After the dismissal of the Regular Second Appeal, plaintiff moved an application for execution of decree in which objections were filed by defendant No. 2 and it was held that decree had become un-executable on account of non-impleadment of defendant No. 1. It was further the case of the plaintiff that against the adjudication on the said execution petition, a Civil Revision was filed by the aggrieved party i.e. present plaintiff in the High Court which was disposed of by this Court vide order dated 17.11.2000, in which, it was mentioned that the petitioner there may get his title established qua land in dispute consequent upon death of Jobnu by way of a Civil Suit. As per the plaintiff, he was in possession of the entire suit land and his prayer was that defendants be restrained from interfering in the suit land by way of issuance of a decree of permanent prohibitory injunction.

(3.) The suit so filed by the plaintiff was resisted by the defendants interalia on the ground that possession of the suit property was actually never delivered by defendant No. 2 to plaintiff as alleged and the suit property was in possession of the defendant. It was further the case of the defendants that Kali after succeeding the property from her late husband had become its absolute owner and she was competent to create tenancy or transfer the same in any manner she liked. On these bases, the title of the plaintiff over the suit land was denied and a counter claim was also filed by defendant No. 1 praying therein for a decree of permanent prohibitory injunction against the plaintiff by restraining him from interfering in the peaceful possession of the suit land.