- (1.) FEELING aggrieved against the impugned judgments and decrees passed by the learned courts below, thereby decreeing the suit of the plaintiff for permanent injunction, defendant has approached this Court, by way of present regular second appeal.
(2.) BRIEF facts of the case, as recorded by learned first appellate court, are that initially the plaintiffs filed a suit for permanent injunction for permanently restraining the defendants from interfering in their peaceful possession of land measuring 43 kanals 5 marals fully detailed and described in the head note of the plaint (hereinafter referred as the suit land) inter alia on the grounds that earlier the parties to suit had been co -share in total land measuring 111 kanals 10 marlas situated in village Kunjpura wherein they alongwith the proforma - defendant had 703/2230 share. They moved an application *before Assistant Collector Ist Grade, Ateli for partition of the suit land. After conducting the partition proceedings the land was partitioned vide order dated 1.7.2002 wherein they were provided with separate chunk of land measuring 43 kanals 5 marlas i.e. the suit land. It is submitted that thereafter the plaintiffs moved an application before AC Ist Grade, Ateli to implement the partition order dated 1.7.2002. In pursuance thereof an order for providing separate possession was passed.
(3.) THE Halka kanungo implemented the order of partition vide rapat no.471, dated 4.6.2004. In pursuance thereof mutation no.993 was also entered and sanctioned after delivery of factual possession. Since then the plaintiffs and the proforma defendant have been cultivating the suit land. However, the defendants without having any right or title therein are interfering in their peaceful possession. They are adamant in their attitude. In case they are not restrained from doing so, the plaintiffs would suffer an irreparable loss. Hence they constrained to file the suit. On notice the defendants no.1,3,4 and 7 put in appearance and filed written statement to contest the suit taking various legal objection of maintainability of the suit, cause of action, locusstandi, estoppel and that the entire partition proceedings was illegal. On merits, the contents of the plaint have been categorically opposed and denied. It has been contended that the plaintiffs cannot claim their exclusive possession over the suit land on the basis of partition as alleged. The alleged partition proceeding is totally illegal and null and void, hence is not binding on the rights of the answering defendants. It is contended that in fact father of the defendants no.1 to 7 had moved an application for partition before the AC Ist Grade, Narnaul for partition of the entire land measuring 114 kanals 12 marlas. However, the said applications was not proceeded by the applicant. They are not aware about the proceeding of the said application by the plaintiffs as alleged because no notice thereof was served upon them. The entire partition proceeding at their back is illegal. As per their 1.1 share in total land measuring 114 kanals 12 merles they were entitled to be provided with 57 kanals 6 marlas but they have been given less area where as the plaintiffs and the proforma defendant have been provided with land more than their share. it is further submitted that the partition proceeding is also illegal on account of non -joinder of necessary parties. The Plaintiffs had sold the land measuring 30 marlas of their share in favour of Tara Chand, Om Parkash and Rajbir sons of Gian Chand and 10 marlas to Savitri Devi. However, the purchasers were not made party in the partition proceeding. It is further submitted that the alleged partition has not ever been implemented at the spot. The Rapat Rozmancha No.471 dated 4.6.2004 relied upon by the applicant is fake and fabricated document. No possession in pursuance of the instrument of partition was ever delivered to the plaintiffs. The parties are in possession of the land as prior to the alleged partition proceeding so question of interfering in the possession of the plaintiff over a specific portion i.e. suit land, does not arise. Since the suit is based on false and frivolous ground hence dismissed thereof with costs, has been sought. Further, while setting up counter claim it has been prayed that rather the plaintiffs may kindly be restrained from staking claim as absolute owners in possession of the suit land measuring 43 kanals 5 marlas. The said land is part of the total land measuring 114 kanals 12 marlas i.e. still joint. The measuring defendants have also title in the suit land as cosharers.;