Amol Rattan Singh, J. - (1.) Civil Misc.No.10912-C of 2016 By this application, recalling of the order dated 09.08.2016 is prayed for, by which the accompanying appeal, i.e. RSA No.417 of 2013, was dismissed for non-prosecution. As per the application, which is accompanied by the affidavit of the Clerk to the learned counsel who filed the appeal, it is stated that when the case was initially called, learned counsel for the applicants-appellants could not reach and it was passed over. Thereafter, the learned counsel had argued the matter at Sr. No.105 on the same date, i.e. 09.08.2016 before this Bench itself and had asked his Clerk to inform him, when the accompanying appeal would be called for hearing again but the Clerk could not inform him on time. As such on account of such non-appearance of the learned counsel, the appeal was dismissed, as contended. Though it is seen that on the previous date of the hearing also, none had appeared for the appellants and in fact even before that, four adjournments had been sought and it was for those reasons, cumulatively, that the appeal was dismissed, however, since learned counsel is also prepared to argue the matter on merits today, the application is allowed and the order dated 09.08.2016 is recalled, with the appeal restored to its original number and stage. Since, no notice had been issued in the appeal, no notice is required to be issued in the application and the appeal itself is taken up for hearing. RSA No.417 of 2013 This is the second appeal of the plaintiffs in a case where, despite their suit seeking a decree of permanent injunction having been decreed, they filed an appeal before the learned first appellate Court, which was dismissed.
(2.) The facts, as taken from the judgments of the learned Courts below, are that as per the plaintiffs, they are in occupation of houses comprised in Rectangle No.160, Killa No.10/1, with the total area under construction being 6 kanals and 9 marlas, situated in Village Dhatrath, Tehsil Safidon, District Jind. The dispute of the plaintiffs is essentially with the first respondent, which is shown to be the Dhanak Community of the said village, comprising of numerous persons, and since, as contended, all such persons as comprised the community could not be specifically listed as defendants, births and deaths taking place in the course of nature, the whole community was being sued in a representative capacity, for which a separate application under Order 1, Rule 8 CPC was also filed. The suit land is stated to be within the Abadi Deh of Village Dhatrath and was being used by the plaintiffs and other inhabitants of the village, who had constructed their houses on it since many years. It was further stated that the physical possession of the suit land had not been taken by the Gram Panchayat (respondent-defendant no.2), even after consolidation of holdings and consequently, the possession of the plaintiffs and other inhabitants had continued for more than 50 years, from the time of their forefathers, though the Gram Panchayat had given 10 marlas of the suit land to the Dhanak Chaupal on "an earlier date". On account of the occupation of the suit land by the villagers, thereafter, the Panchayat, vide a resolution dated 18.02.2003, had given some other land to the Dhanak Chaupal, near the Gaushala of the village, which was situated on the mettled road constructed by the Public Works Department, running through Rectangle No.160, Killa No.13/6. It was further contended that the said resolution was passed to avoid any dispute with regard to the Gair Mumkin land occupied by the plaintiffs and the other villagers. A large amount of money having been spent by the plaintiffs on the construction of the building and four walls, on the suit land, was also averred in the plaint.
(3.) The grievance of the appellants-plaintiffs was that despite the above, the first defendant, i.e. Dhanak Community, allegedly in collusion with the second defendant (Gram Panchayat), were trying to evict the plaintiffs without their being any such orders from any Court of law. Consequently, the defendants allegedly having ignored the request of the plaintiffs to desist from their action, the suit was instituted on 02.01.2006.;