ANIL KUMAR & OTHERS Vs. Y P VERMA

JUDGEMENT

(1.) The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff's suit for rendition, of, a decree for permanent prohibitory injunction qua the suit khasra number(s), was, hence decreed.

(2.) Briefly stated the facts of the case are that the suit land is recorded to be jointly owned and possessed by one Shri Ranjan Sharma, Smt. Asha Devi and others and the plaintiff has purchased the share of Smt. Asha Devi in the suit land, which is joint property of its owners and after purchasing the share of Asha Devi, the plaintiff moved an application for partition of the joint land in the Court of Assistant Collector 1st Grade, Solan, which was allowed and mutation No. 1102 was attested in pursuance thereof. However, such partition proceedings were challenged in an appeal before the Court of Sub Divisional Collector and in appeal the partition proceedings have been set aside and case of partition has been remanded back to the court of A.C. 1st Grade, Solan. Defendants No.1 to 4, have purchased ¼ share in the suit land vide sale deeds No.268 and 271 of 23.05.1995, though, the defendants No.1 to 4, are non agriculturists. The suit land is recorded to be jointly owned and possessed except 195 Sq. meters which has been separately shown only on account of partition which partition has already been set aside and as such revenue entries qua khasra No.2654/263, 2655/263 and 2553/263, measuring 195 sq. meters are wrong, illegal and suit land is still joint. The defendants No.1 to 4 have filed a civil suit against the plaintiff seeking injunction so as to restrain the plaintiff from raising construction on the land comprising Khasra No.2553/263, measuring 48 sq. meters on the plea that there was some family settlement, whereas, no such family settlement has taken place between the parties and the said family settlement is result of concoction and fabrication and even such family settlement has not been acted upon. Defendants No.1 to 4 have no right, title or interest to change nature, raise construction or cut trees from the suit land and even regarding the sale deeds on the basis of which the share in the suit land was purchased by defendants No.1 to 4, the proceedings under Sec. 118 of the H.P. Tenancy and Land Reforms Act were initiated by the State of H.P., in the court of District Collector, Solan, as the defendants No.1 to 4 are non agriculturists and under the provisions of the aforesaid Act they could not have purchased the share in the suit land and the share purchased by defendants No.1 to 4 have been confiscated in favour of the State of H.P. by the District Collector, Solan, but in appeals the cases have been remanded back. The defendants are now threatening to raise construction the suit land forcibly despite protest of the plaintiff.

(3.) The defendants contested the suit and filed written statement, wherein, they have pleaded that the suit is liable to be stayed under section 10 of the CPC, as the matter in issue is also directly and substantially in issue in a previously instituted suit pending in the court of learned Sub Judge 1st Class, Solan, which suit is for declaration and permanent injunction for declaring the sale deed vide which the plaintiff has purchased the share in the suit land from Smt. Asha Devi pertaining to land comprising khasra No. 263/1 to be illegal, void as the suit land is owned and possessed by defendants No.1 to 4 on the basis of a registered document of 4.8.1936 which has been acted upon throughout by the parties and their predecessors an said Smt. Asha Devi was having no share in the land comprising in khasra No.263/1. It has been averred that the suit land has been completely partitioned between the predecessors of the parties on the basis of document dated 4.8.1936 accompanied by tatima duly signed by the predecessors of the parties. It has been stated that the plaintiff has purchased firstly 412 sq. meters of land, comprising Khasra No. 244, 245, 246 and 265 which shown in the possession of Smt. Asha Devi but lateron he got a fraudulent sale deed registered qua Khasra No.263 which had been challenged in the previous suit as Smt. Asha Devi was having no title in the land comprising Khasra No.263. It is also averred that the partition which was got fraudulently by the plaintiff by filing proceedings against the dead person has been set aside and the same is pending in the court of A.C. 1st Grade, Solan. It has been stated that the defendants are exclusive owners in possession of the land purchased by them through the sale deeds Nos. 268 to 271 dated 23.5.1995 and it is denied that the defendants are non agriculturists. It is also denied that the suit land is joint. It is admitted that a civil suit has been filed by the defendants No.1 to 4, against the plaintiff which is pending before the learned Sub Judge 1st Class, Solan. It is denied that the deed of partition is manipulated and fabricated document and that question of violation of H.P. Tenancy and Land Reforms Act has no bearing on the present suit which is under consideration before the Collector Solan. It is denied that the defendants are causing any damage to the suit land and threatening to raise construction but stated that during July, 2000 on account of rains the retaining wall of Red Cross road collapsed causing the partial collapse of the house of the defendants regarding which letter was written to the Municipal Committee, Solan but no action was taken by M.C. Solan and thus the defendants had to repair the collapsed retaining wall as it was causing extensive damage to the property of the defendants.