BIASAN DEVI Vs. SARUP CHAND

JUDGEMENT

(1.) By way of the present appeal, the appellant has challenged the judgment passed by the Court of learned District Judge, Kangra at Dharamshala, in Civil Appeal No.93-P/XIII-2002, dated 01.01.2004, vide which, the learned lower Appellate Court has affirmed the judgment and decree passed by the then learned Sub Judge 1st Class, Court No.II, Palampur, District Kangra, in Civil Suit No.66 of 1994, dated 20.6.2002.

(2.) Material facts necessary for adjudication of this Regular Second Appeal are that respondent/plaintiff (hereinafter referred to as 'plaintiff') maintained a suit for declaration against the appellant/defendant (hereinafter referred to as 'defendant') alleging that plaintiff is owner-in-possession of land comprising in Khata No.122, Khatauni No.168, Khasra No.541/377, 384, 540/377, 386, Kita 4, land measuring 1-06-64 Hect. situated in Mohal Boda Uperla, Mauza Daroh, Tehsil Palampur, District Kangra (H.P) (hereinafter referred to as 'suit land'). As per the plaintiff, the order of Settlement Officer, Kangra Division at Dharamshala in Missal No.28/91/80, dated 9.12.1991, maintained by the defendant and mutation No.153, whereby Settlement Officer, Kangra Division at Dharamshala, in the absence of plaintiff has allotted part of the land of Khasra No.384 and 386 i.e. 384/1, 384/2 and 386/1, total land measuring 0-02-69 Hects. situated in Mohal Boda Uperla, Mauza Daroh, Tehsil Palampur, District Kangra, is wrong, illegal, null and void and as such, the same is liable to be set aside with consequential relief of permanent prohibitory injunction restraining the defendant from taking forcible possession, raising any structure or interfering in any manner, whatsoever over the suit land. Further, suit land is owned and possessed by the plainitff from Polo Ram son of Giga Ram through registered sale deed. After the purchase, plaintiff is in peaceful possession of the suit land and defendant has no right, title or interest. Defendant in connivance with revenue staff maintained an application on 12.8.1991 before Settlement Officer, Kangra Division at Dharamshala, for correction, in which plaintiff was not party. The said application was decided on 9.12.1991 in absence of the plaintiff. The Settlement Officer, Kangra Division at Dharamshala, has not served any notice upon the plaintiff without affording any opportunity to the plaintiff and allowed the application of defendant illegally and wrongfully whereby the Settlement Officer, has ordered to transfer part of suit land comprised in Khasra No.384/1, 384/2 and 386/1 (Kita 3) land measuring 0-02-69 Hects. in the name of defendant and on the basis of said order, mutation No.153, was attested in favour of the defendant. In the month of June, 1993, defendant has started interference in the suit land and threatened to take forcible possession of the same, on the basis of said illegal order passed by the Settlement Officer, dated 9.12.1991.

(3.) Defendant contested and resisted the suit by raising preliminary objections qua locus standi, estoppel, cause of action and maintainability. On merits, defendant claimed that land comprised in Khasra No.384/1, 384/2 and 386/1 infact was part and parcel of her owned and possessed land of Khasra No.385, during settlement was assigned Khasra No.383. In the settlement, her land was wrongly merged in Khasra No.384 and 386 and area of her land was decreased. After demarcation, defendant maintained an application for correction before the Settlement Officer, Dharamshala, and the same was allowed, vide order, dated 9.12.1991. The plaintiff was party to the application and the said application was decided in presence of plaintiff. The plaintiff was duly served and sufficient opportunity was afforded to him to defend himself. Defendant is in possession of the suit land, hence question of threatening to take forcible possession does not arise.