GITA DEVI Vs. SUBHASH CHAND

JUDGEMENT

(1.) Instant Regular Second Appeal is filed under Section 100 CPC against judgment and decree dated 12.5.2015 passed by the learned Additional District Judge-II, Kangra at Dharamshala in Civil Appeal No. 9-D/XIII/2014, affirming judgment and decree dated 17.5.2014 passed by the learned Civil Judge (Junior Division), Court No. II, Dharamshala in Civil Suit No. 300/13/11, whereby suit for permanent injunction having been filed by the appellant-plaintiff (herein after, 'plaintiff') came to be dismissed.

(2.) Briefly stated the facts as emerge from the record are that the plaintiff filed a suit for permanent injunction restraining the defendant from claiming exclusive ownership and possession qua the suit land, averring therein that land comprised in Khata No. 188 Khatauni No. 341 Khasra No. 497, measuring 00-05-08 Hectares situated in Mahal Uperli Dar, Mauza Ghaniara, Tehsil Dharamshala District Kangra, HP (herein after, 'suit land') was jointly owned and possessed by the parties alongwith others. Plaintiff further averred that some persons in Khatauni No. 342 to 345 are shown in possession without status, about which a separate suit is pending in the Court of Civil Judge (Junior Division)-I, Dharamshala. Plaintiff further alleged that entire suit land comprising Khatauni No. 339, 340 and 341 is jointly owned and possessed by owners and defendant but in the revenue record, separate possession has been shown which is not as per the spot position. Plaintiff also alleged that the defendant has purchased a share in the Khata from Smt. Reena and other co-owners and that possession has been recorded in Khatauni No. 341, Khasra No. 497. She further alleged that since suit land was much more valuable, defendant taking advantage of the entry in the revenue record was attempting to occupy the same. It is further alleged that in order to occupy the suit land, which is partly in possession of the plaintiff, defendant applied for demarcation. Plaintiff also claimed that defendant is proclaiming himself to be exclusive owner-in-possession of the suit land and harassing the plaintiff and others through police. By way of suit, plaintiff claimed that till the suit land/entire Khata is partitioned, defendant has no right to appropriate this valuable piece of land to the disadvantage of plaintiff and other co-owners. Plaintiff prayed for decree restraining the defendant from changing the nature of suit land, raising any fence/barbed wire and artificial partition, raising construction on the land as described above, till the partition of Khewat No. 188 by metes and bounds. In the alternative, plaintiff also prayed for permanent injunction.

(3.) Defendant refuted the aforesaid contentions put forth on behalf of the plaintiff by filing written statement. Defendant specifically stated that the suit of the plaintiff is barred under Order IX Rule 9 CPC and Order XXIII Rule 1 CPC. While claiming himself to be in exclusive possession of the suit land, he stated that there had been a private partition of suit land between the predecessor-in-interest of the plaintiff and one Hari Kishan and Khasra No. 497 fell to the share of Hari Kishan and possession of Hari Kishan was also recorded qua Khasra No. 497, which was clear from previous records, as such his possession was recorded qua suit land. Defendant further claimed that Hari Kishan sold suit land to the defendant vide registered sale deed dated 1.10.1987 and possession was also handed over to the defendant on the spot. It is also averred that the defendant got the suit land fenced with angle iron and barbed wire after getting it demarcated through revenue agency on 25.3.1990, in the presence of plaintiff and Hari Kishan. Defendant also averred that the suit land was exclusively owned and possessed by him, therefore, question of getting suit land partitioned, did not arise. In this background, he prayed for dismissal of suit.