- (1.) This second appeal is directed against the judgment and decree of the Additional District Judge, Patiala, dated 21st August, 1974.
(2.) Brief facts of the case are that Jangir Singh plaintiff-respondent had filed a suit for permanent injunction against Nagina Singh defendant-appellant restraining him for removing the wall constructed by him within his own land and from interfering with his open space or construction thereon in any manner. Jangir Singh had purchased a plot measuring 1118 square feet in open auction held on 27th January, 1965, for a sum of Rs. 1,600/-. It is alleged in the plaint that Jangir Singh had constructed a wall on the purchased plot without encroaching upon any part of the land of Nagina Singh defendant-appellant or passage leading to his house. It may be mentioned here that earlier to the present suit, Nagina Singh had also filed a suit for mandatory injunction in the Court of Sub-Judge, Rajpura, restraining Jangir Singh plaintiff-respondent from raising any construction in the street and to demolish the wall which he had constructed. The parties agreed in that suit that the matter may be referred to the sole arbitration of Shri Siri Bhan, Tehsildar, Rajpura. The Tehsildar gave the award on 10th February, 1966, which is in the following terms :- "I have carefully gone through the evidence produced by the parties and have given my careful consideration to the factual position at the spot and as a result of that I give my award as follows :- 1. That Jangir Singh purchased this land for Rs. 1600/- and the area shown in the Khasra Shikni was 1118 sq. feet. 2. That the area in possession of Jangir Singh according to the measurements made by me at the spot was found as 874 sq. feet leaving a deficiency of 244 sq. feet. 3. That this discrepancy in the area is to be made good by the Sales Deptt. and for that purpose Jangir Singh should apply to the Sales Department. 4. That the present lane of whatever width it may, should continue to be used by the owners of the neighbouring houses till such time as the encroachment, if any, is found to have been made by any person and it is got removed through the efforts of the Sales Department. 5. That the status quo now at the spot should continue till such time as the application of Jangir Singh is decided by the Sales Department resulting in the removal of encroachment, if any. The award is submitted to the Sub-Judge, Ist class, Rajpura." The Sub-Judge, Rajpura, refused to accept the award vide his order dated 6th August, 1966. The appellant then filed an appeal before the District Judge who held that the award is not vague and set aside the order of the trial Court and remanded the case to the Sub-Judge, Rajpura. Then the Sub-Judge, Rajpura, made the award a rule of the Court and decreed the suit of Nagina Singh appellant in terms of the award on 29th November, 1967 and Jangir Singh respondent was restrained from making any encroachment on the site which was used as passage situated towards the west of the wall raised by Jangir Singh.
(3.) Aggrieved by that judgment and decree, Jangir Singh filed an appeal which was dismissed by the Additional District Judge, Patiala, on 1st August, 1969. Jangir Singh filed revision petition No. 982 of 1969 in the High Court against the judgment of the learned Additional District Judge. When the matter came up for final hearing before the High Court on 25.1.1971, the parties' counsel made statements and consequently, the decree of the learned Subordinate Judge, dated 29th November, 1967, was modified so as to read as under :- "It is hereby ordered that the award is made a rule of the Court and the suit of the plaintiff is decreed in terms of the award and the defendant is restrained from making any encroachment on the site now used as passage marked 'ACFE' in the plan marked 'X' and situated to the west of the wall raised by the defendant till such time as the encroachment, if any is found to have been made by any person and it is got removed through the sales Department." In terms of the decree and the award which was made a rule of the Court, Jangir Singh should have approached the Rehabilitation Authorities but he did not do so. Instead Nagina Singh approached the Naib Tehsildar (Sales) who passed an order on 18th September, 1972, cancelling the sale with respect to the street of 8 feet from the plot sold to Jangir Singh and further directed that Jangir Singh could take back a sum of Rs. 337/- out of the amount of Rs. 1,600/- paid by him for the purchase of the plot. Jangir Singh did not file an appeal against that order before the Rehabilitation Authorities but chose to file the present suit in the Court of Sub-Judge. The following issues were struck by the trial Court :- "1. Whether the Civil Court has jurisdiction to entertain this suit ? 2. Whether the suit is bad on account of non-joinder of the necessary parties ? Issue No. 1 was decided against the plaintiff-respondent while issue No. 2 against the defendant-appellant by the trial Judge who also observed that as the wall raised by Jangir Singh had been demolished at his instance by his son the suit has become infructuous. Dissatisfied by this order, plaintiff-respondent filed the first appeal before the learned Additional District Judge, Patiala, who vide his judgment dated 21.8.1974 reversed the finding of trial Judge on issue No. 1 and sent back the case to the trial Court for fresh decision on merits in accordance with law.;