(1.) The plaintiffs' suit for rendition of a decree for permanent prohibitory injunction, vis-a-vis, the suit land, and, against the defendant, stood hence decreed, and, the defendant's/counter claimant's, counterclaim, wherein he reared a plea qua his acquiring title, vis-a-vis, the suit khasra number(s), through, adverse possession, rather stood dismissed, by the learned trial Court. The aggrieved therefrom defendant/counter claimant one Ram Lal, preferred an appeal, before the learned First Appellate Court, and, the latter court , while upholding the appealed against verdict, hence, dismissing the defendant's/counter claimant's counterclaim, (a) thereafter proceeded to accept the appellant/defendant's appeal, only, on the score qua the suit being not maintainable, vis-a-vis, the undivided suit property, conspicuously for want of joinder, of all the co-sharers, in the array of plaintiffs or in the array of co-defendants. The plaintiffs are aggrieved therefrom, hence, have instituted, the instant regular second appeal, before this Court.
(2.) Briefly stated the facts of the case are are that the plaintiff has filed suit for rendition of a decree for permanent prohibitory injunction against the defendant to restrain the defendant from interfering in any manner in peaceful ownership and possession of the land comprised in Khasra No.912, 913 and 915, Kita 3, measuring 00-18-38 hectares, Khata No.8, min, Khatauni No. 56, situated in Chak Chillala, Tehsil Chirgaon, District Shimla, H.P. The suit land is averred to be in exclusive ownership and possession of plaintiff's father along with other co-sharers and over khasra No.912, there is two storeyed house and over the land comprised in Khasra No. 913 and 915, there is apple orchard with fruit bearing plants. The house was constructed by the plaintiff himself in 1990 and apple orchard was planted by the father of the plaintiff along with other co-sharers in the year 1975. It is also averred that father of the plaintiff and other co-sharers died in 1998 and suit land was inherited by the plaintiff and other co-sharers. The plaintiff along with other co-sharers is exclusive owner in possession of the suit land. The defendant is real uncle of the plaintiff and other cosharers and he resides near to the suit land. The plaintiff used to reside maximum time in village Tangnu. The defendant by taking advantage of absence of plaintiff from the suit land started causing interference by preparing bedding and pruning etc., in the apple orchard in the first week of March, 2003 with the intention to take its possession. The plaintiff has not allowed the defendant to take forcible possession of the suit land by the defendant is still adamant to take forcible possession of the suit land. It is also averred that in the column of possession and ownership, the name of Smt. Bhajan Dei and Parmod Kumar, Smt. Sarojni etc., figures but they have not been arrayed parties as the suit has also been filed for their benefit also. The defendant has o right, title or interest over the suit land and he be restrained from causing any kind of interference with the ownership and possession of the plaintiff in respect of the suit land in any manner and prayed that the suit be decreed.
(3.) The defendant contested the suit and filed written statement, wherein he has taken preliminary objections qua maintainability, suit is not properly constituted, land being in possession of the defendant and suit for injunction being not maintainable, suit being bad for non joinder of necessary parties, and, that the plaintiff has not cause of action to file the suit and the replying defendant has acquired title over the suit land by way of adverse possession. On merits, it is averred that it is wrong that orchard was raised by the father of the plaintiff. It is also denied that there is two storeyed house upon the suit land. It is averred that in the month of March, 1975, the father of the plaintiff Main Ram sent defendant to village Chillala to develop the land and use the same for the benefit of family. The parties to the suit belongs from village Tangnu and there entire landed property is joint at village Tangnu. Earlier the father of the plaintiff Main Ram and now plaintiff himself along with his family used to reside at village Tangnu. However, the replying defendant is residing at village Chillala where suit land is situated and he has constructed the house over the suit land and developed the orchard out of his personal income. Neither the plaintiff nor his father Main Ram ever took any activities over the suit land. The suit land was purchased by defendant and father of the plaintiff jointly out of joint funds of family and 90% was contributed by the defendant but the father of the plaintiff by taking advantage of illiteracy of the defendant got entered the suit land in his name only. It is averred that recently, defendant came to know about the wrong revenue entries hence he inspected the revenue record. The revenue entires in the name of the plaintiff and earlier in the name of his father may be declared null and void. The suit land is in possession of the replying defendant and there arises no question of taking forcible possession as averred in the plaint. The possession of the defendant over the suit land is since 1975 and the defendant has now acquired title by way of adverse possession regarding which the defendant is filing counterclaim separately.