Paramjit Singh Patwalia, J. - (1.) THIS regular second appeal by plaintiff is directed against the judgment and decree dated 27.08.2009 passed by learned Additional District Judge, Panipat whereby appeal preferred by the respondents -defendants has been accepted, judgment and decree dated 03.11.2008 passed by learned Additional Civil Judge (Sr. Divn.), Panipat has been set aside and suit of plaintiff has been dismissed.
(2.) FOR convenience sake, hereinafter, reference to parties is being made as per their status in the suit. The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that plaintiff filed a suit for mandatory injunction with the averments that he had earlier filed a suit before the Assistant Collector Ist Grade, Panipat to the effect that he is owner in possession of the land mentioned in para 1 of the plaint. The said suit of the plaintiff was contested by the defendants and ultimately, vide judgment and decree dated 22.01.1996, it was decreed holding that property in dispute does not vest in Gram Panchayat, Nara. The said judgment and decree had become final. Thereafter, the plaintiff approached the Halqa Patwari and Kanungo for entering the mutation on the basis of decree dated 22.01.1996. Naib Tehsildar -cum -Assistant Collector IInd Grade was also approached to get the mutation entered and sanctioned on the basis of above said judgment and decree, but the authorities failed to do so. Thereafter, legal notice dated 03.09.2007 under Section 80 CPC was also served upon the defendants for getting the mutation sanctioned, but in spite of the same, no action was taken. Even application was also moved before the Sub Divisional Officer (Civil) -cum -Collector, Panipat, but he also did not take any action. After the expiry of period of notice dated 03.09.2007, suit was filed.
(3.) UPON notice, defendant No. 1 resisted the suit and filed written statement taking preliminary objections that suit is not maintainable; that suit has been filed against Haryana State through Naib Tehsildar -cum -Assistant Collector -IInd Grade, Madlauda, District Panipat which is against the law and provisions of CPC; that suit has been decreed merely to the extent that the suit land does not vest in Gram Panchayat, whereas, it has not been recorded that plaintiff is the owner in possession of the suit land. On merits, it was denied that the plaintiff is owner in possession of the suit land. It was pleaded that Assistant Collector -Ist Grade merely observed that suit land does not vest in Gram Panchayat, therefore, in view of abovesaid observation, mutation cannot be sanctioned in favour of the plaintiff as owner. Other averments in plaint were denied and dismissal of suit was prayed for.;