BALI RAM Vs. HIRA SINGH

JUDGEMENT

(1.) The plaintiff's suit for rendition of a decree for perpetual injunction, vis-a-vis, the suit khasra numbers, stood, dismissed by the learned trial Court, and, in an appeal carried therefrom, by, the aggrieved defendant, before, the learned First Appellate Court, the latter Court reversed the verdict pronounced by the learned trial Court. The defendant/appellant herein being aggrieved therefrom, hence, has instituted the instant Regular Second Appeal before this Court.

(2.) Briefly stated the facts of the case are that the plaintiffs had instituted a suit for perpetual injunction against the defendant on the allegations that he had been in possession of the suit land detailed in the plaint. In the books of the Collector, Khasra No. 33, measuring 5 bighas, 15 biswas had been recorded under the ownership of the State. The state right holders had been recorded in possession. At the time of last settlement, new Khasra No. 576, 577 and 580 had been carved out of old khasra No. 33min (33/2). The plaintiff had been coowner in possession of Khasra No. 3 The suit land was towards the western side of khasra No. 3 The plaintiff had taken possession of the suit land more than 30 years back and had planted an apple orchard thereon. The village Patwari on 17.03.1988 had reported encroachment of the suit land against the plaintiff to the authorities vide reference Mark Px. The plaintiff had not been ejected from the suit land. Defendant on 3.5.1990 had issued civil suit No. 39/1 of 1990 against the State and had claimed ownership of Khasra No. 33/1, measuring 1 bigha, 5 biswas, out of total area measuring 5 bighas 15 biswas of Khasra No. 33. The State had resisted the suit of the defendant. The learned Sub Judge 1st Class, Theog, vide judgment and decree of 20.01.1993 had erroneously decreed the civil suit No. 39/1 of 1990 of the defendant and had declared him owner in possession of Khasra Nos. 28 and 33, measuring 7 bighas 18 biswas, whereas, the defendant had claimed ownership and possession of Khasra No. 33/1, measuring 1 bigha 5 biswas and Khasra No. 28, measuring 2 Bighas, 6 biswas. After passing of the judgment and decree dated 20.01.1993, the defendant, contrary tot he fact situation, had been recorded owner in possession of the suit land. The defendant had started interfering with the possession of the plaintiff. He had been requested not to do so, but in vain. Hence the suit.

(3.) The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections inter alia, maintainability, misjoinder and limitation. On merits, the defendant had amditted of his having instituted Civil Suit No. 39/1 of 1990 and had claimed ownership and possession of Khasra Nos. 28 and 33/1, measuring 3 bighas, 11 bsiwas. The State had resisted the suit of the defendant. The learned Sub Judge vide judgment and decree dated 20.01.1993 had decreed the suit of the defendant. In the books of the Collector, the defendant had been rightly recorded as owner in possession of the suit land. The plaintiff as also the State had not appealed against the judgment and decree, dated 20.01.199 Mutation on the strength of the decree of th Court stood sanctioned in favour of the defendant. The plaintiff had not been in possession of the suit land. He had not planted apple plants therein. The plaintiff without any locus standi and cause of action had instituted false and frivolous suit and was not entitled to any relief much less to the discretionary relief of inunction.