CHET RAM Vs. SATYA DEV

JUDGEMENT

(1.) The plaintiff's suit for rendition of a decree for permanent prohibitory injunction, vis-a-vis, the suit khasra numbers, stood decreed, by the learned trial Court, and, the appeal reared thereagainst before the learned first appellate Court, by the aggrieved therefrom defendant, also sequelled a verdict rather affirming the verdict recorded, by the learned trial Court. The defendant, is, aggrieved therefrom, hence, has instituted the instant appeal before this Court.

(2.) Briefly stated the facts of the case the plaintiff filed a suit for permanent prohibitory injunction on the allegations that he was owner in possession of land comprising in khasra No. 100/101, measuring 2.17 bighas, situated in Chak Jagoti, as the same had fallen in his share in a family partition which took place inter se the co-sharers. During recent settlement operation, new khasra numbers have been allotted to the said land, whereas, he has been shown to be the owner of new khasra No.329, measuring 0-13-74 hectares i.e. equivalent to 1.16 bighas, the defendant has been shown to be the owner of Khasra numbers 332 and 331 comprised in Khata Khatauni no.7/14 min situated in revenue Chak Jagoti, Tehsil Chirgaon, District Shimla, the area of which is about 1 bigha. Both the said khasra numbers are contiguous to Khasra No.329. It has been pleaded that since his area had been reduced by 1 bigha, for this reason, the settlement record was not prepared correctly and for getting the same corrected, he has moved an application. In fact, the suit land which has been shown by khasra No.331 and 332 was the part of old khasra numbers 100 and 101. On the spot, he has been in possession of land measuring 2.17 bighas which now comprises Khasra No.329, 332 and 331. On this land measuring 2.17 bighas, which is cultivable, he had also raised an apple orchard. It has been pleaded that taking undue advantage of wrong revenue entries, the defendant made an attempt on 12.10.1997 to dispossess him from the suit land by threatening to plough it but his such attempt was made futile.

(3.) The defendant contested the suit, and, filed written statement to the plaint, wherein, he has taken preliminary objections qua maintainability as the suit for possession of the suit land has already been filed against the plaintiff b y the defendant, hence, it is liable to be stayed. On merits, it is pleaded that there is nothing wrong in the settlement record because khasra No.331 and 332 correspondent to old Khasra No. 264/79 and 99 min. It was specifically denied that khasra numbers 331 and 332 are the part of the land of the plaintiff. Since, the suit land is owned by him as per the latest revenue record, the plaintiff had no legal right to encroach upon the same. In the demarcation, which he had applied for and finally decided on 10.9.1997, the suit land was found to have been encroached upon by the plaintiff and in order to recover its possession, he filed a suit for possession. Since, the land of the defendant had been in possession the plaintiff, for this reason, he has no cause of action to file the suit.