Decided on September 29,2020

VINOD KUMAR Respondents


Sandeep Sharma, J. - (1.)Instant petition filed under Art. 227 of the Constitution of India is directed against judgment dated 6.6.2019 passed by learned District Judge, Sirmaur at Nahan in CMA No. 3-CMA/14 of 2019, affirming the order dated 7.12.2018 passed by learned Civil Judge, Rajgarh, District Sirmaur, Himachal Pradesh in CMA No. 135/2018 in Civil Suit No. 85/1 of 2018, whereby an application under Order XXXIX, rules 1 and 2 CPC, having been filed by petitioner-plaintiff (hereinafter, 'plaintiff') praying therein to restrain the respondent-defendant (hereinafter, 'defendant') from interfering in the land comprised of Khata Khatauni No. 215, measuring 85-40 square metre, situate in Mauja Rajgarh-II, Tehsil Rajgarh, District Sirmaur, Himachal Pradesh (hereinafter, 'suit land') either by himself, or through his agents, till disposal of the main suit, came to be dismissed.
(2.)For having a bird's eye view of the matter, certain undisputed facts, as emerge from pleadings adduced on record by the parties are that the plaintiff filed a suit for declaration that he and proforma defendants are co-owners-in-possession of the suit land, as well as seeking relief of permanent prohibitory injunction restraining defendant No.1 from raising construction, changing the nature and causing interference in the suit land. Plaintiff averred in the plaint that he being resident of Village Chuni, Tehsil Rajgarh, District Sirmaur, Himachal Pradesh, is one of the shareholders of the Shamlat land in revenue village Rajgarh. He averred that the Shamlat land has been reverted back to the shareholders of Shamlat and as such, shareholders of Shamlat land have become owners, as a consequence of which, plaintiff and proforma defendant have become co-owners in possession of the suit land. Plaintiff alleged that defendant No.1 tried to cut bushes from the suit land on 1.2.2018 by employing labour and also tried to take forcible possession of the suit land and when plaintiff tried to stop him, defendant proclaimed that he has become owner of suit land. Plaintiff averred that he visited the office of Village Revenue Officer on 12.1.2018 but came to know that name of defendant NO.1 has been recorded in the column No. 5 in the revenue record, whereas, he has no right over the suit land in any manner. Plaintiff averred that in the copy of Jamabandi for the years 1987-88, land has been shown to be Shamlat Patti Gadala Hasb Rasd Khewat and in the column of possession same has been shown as Maqbuza malkaan. In the Jamabandi for the years 1992-93, Khasra number has been denoted as 653/385 measuring 0-0-2 Bigha and name of defendant No.1 has been smuggled into the revenue record in Column No.5 without any basis with collusion of the revenue staff. Alongwith said plaint, plaintiff also filed an application under Order XXXIX, rules 1 and 2 CPC praying therein to restrain defendant No.1 from causing any kind of interference in the suit land, allegedly owned and possessed by plaintiff and proforma defendant during the pendency of the civil suit.
(3.)Aforesaid claim put forth by the plaintiff came to be resisted by defendant No.1, who in his written statement alleged that Khasra No. 1343 and 1344 were part of old Khasra No. 385/396/96 Khata Khatauni No. 151/6, min, situate in revenue village Rajgarh. One Surat Ram son of Ishru, was in possession of 0-3 Biswa of land in Khata Khatauni No. 151/6 min, at the spot. Defendant No.1 alleged that above named Surat Ram had constructed a Kachha residential house on land measuring 0-3 Biswa but since he was in need of money, he sold the aforesaid land alongwith debris of Kachha house for a consideration of Rs.5000/- to him and in this regard a sale deed was executed by Surat Ram in his favour on 6.12.1985. Defendant No. 1 also claimed before learned court below that he filed an application for correction of revenue entries in his favour regarding 0-3 Biswa of land i.e. Case No. 32/89 and same was decided on 11.9.1989. Defendant No.1 claimed before learned Court below that all the stake holders of land in question were summoned by Assistant Collector 1st Grade, Rajgarh and in that process, one Prem Chand, who happened to father of the plaintiff, raised objection with regard to correction of revenue entries but subsequently, matter was compromised inter se defendant No.1 and Prem Chand and in the settlement, it was agreed inter se parties that out of 0- 3 Biswa of land, land to the extent of 0-2 Biswa shall be occupied by defendant No.1 as owner-in-possession whereas, remaining 0-1 Biswa land will be occupied by Prem Chand, as owner-in-possession. Defendant No.1 claimed before learned court below that on the basis of aforesaid settlement inter se Prem Chand, father of plaintiff, order was passed by Assistant Collector 1st Grade on 19.9.1999, whereafter, land measuring 0-2 Biswa occupied by defendant No.1 came to be depicted as Khasra No. 653/385/96/1, whereas, 0-1 Biswa of land owned and possessed by Prem Chand, was depicted as Khasra No. 653/385/96/1 in the Tatima. In the aforesaid background, defendant claimed before learned court below that on account of correction ordered by Assistant Collector 1st Grade, Rajgarh, Khasra No. 653/385/96/1 measuring 0- 2 Biswa has been shown as Khasra No. 1344 and Khasra No. 653/385/96/2 measuring 0-1 Biswa shown as Khasra No. 1343. Lastly, defendant No.1 claimed before learned court below that the suit at hand has been filed by the plaintiff in collusion with his father, Prem Chand, with a view to grab land of the defendant No.1, as the same is a valuable land and falls in the jurisdiction of Nagar Panchayat area, Rajgarh.

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