ROOMI Vs. SITU AND ANR

JUDGEMENT

(1.) This Regular Second Appeal has been directed against the judgment and decree dated 29.8.1998 passed by the learned Additional District Judge (1), Kangra at Dharamshala in Civil Appeal No. 44-D/97.

(2.) Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff for convenience sake) filed a suit for permanent injunction restraining the respondents-defendants (hereinafter referred to as the defendants for convenience sake) from interfering, changing the nature of land, raising any construction and disturbing the existing position of the Whether the reporters of Local Papers may be allowed to see the judgment No. plaintiff over the suit land comprised in Khata No. 96, Khatauni No. 249, Khasra Nos. 539 to 543, kita 5 measuring 0-28-17 hectares situated in Up-Mohal Lehsar, Mauza Yol, Tehsil Dharamshala, District Kangra till the partition of the same by metes and bounds. It is also averred that the suit land is jointly owned and possessed by the parties and other co-sharers and that the defendant No. 1 is owner to the extent of share and the defendants are already occupying the same in the form of their house and courtyard etc. and that the plaintiff is owner to the extent of 9/12th share and his due share works out to 0-19-19 hectares in which some of land is in the form of cultivable and the same is cultivated by the plaintiff from many years. The suit was contested by the defendants. The defendants have denied the averments made in the plaint and have further stated that the defendant No. 1 with his other two brothers, namely, Beli Ram and Masto are tenants with the plaintiff to the extent of 8th share in Khata No. 96 measuring 0-18-78 hectares, which the plaintiff purchased from the previous owner Sh. Shiv Ram son of Saudagar. They have termed the entry showing the suit land in self cultivation of the plaintiff as wrong and according to them, defendant No. 1 alongwith his brothers should have been shown as tenant to the extent of his share i.e. 0-18-78 hectares in the cultivation column. The learned Sub Judge decreed the suit on 5.5.1997. The defendants preferred an appeal before the learned Additional District Judge (1), Kangra at Dharamshala. He accepted the appeal partly. He set aside the findings of the learned trial court on issue No. 7 to the effect that defendant No. 1 and others are not the tenants under the plaintiff qua the suit land. A decree for permanent prohibitory injunction restraining the defendants from interfering, changing the nature of the land, raising any construction and disturbing the existing possession of the plaintiff over the suit land till its partition was passed in favour of the plaintiff and against the defendants. This Regular Second Appeal has been directed against the judgment and decree dated 29.8.1998. The same was admitted on the following substantial questions of law:

(3.) Whether learned first appellate court below misread and mis-appreciated the oral and documentary evidence with specific reference to the statement of DW-1