TARLOK SINGH CHAUHAN, J. - (1.)THE appellants are the proforma defendants and have come up in appeal against the judgment and decree dated 6.12.2007 passed by learned District Judge (F), Shimla in Civil Appeal No. 68 -S/13 of 2005/04.
(2.)THE facts as necessary for the adjudication of the case are that one Udi Ram son of late Sh. Handu at the time of his death was succeeded by his four sons namely Het Ram, Jagat Ram, Mast Ram and Thapi. Het Ram had son proforma defendant No.7 Anokhi Ram and Mohi Ram, plaintiff, Jagat Ram had widow Mathi, Mast Ram had sons Mehar Singh, defendant No.1 and Dharam Singh Defendant No.2, Vidya Devi, daughter, defendant No.3, Thapi had sons Med Ram, defendant No.4 and daughter defendant No.5 Smt. Kalawati maintained that Udi Ram was owner in possession of landed property situated at Mauja Suin, Kogi, Pateog and Mauja Majhiar, Tehsil and Distt. Shimla, H.P. The details of the property was given in para No.4(1) of the plaint. The details of property had also been given which was situated in Suin Kogi. The property situated at Pateog (hereinafter referred to as the suit property), maintained that during his life time, late Sh.Udi Ram himself effected family partition amongst his sons, according to which he gave finally all his moveable and immoveable properties including land at Mauja Pateog to his sons Het Ram and Jagat Ram. The remaining land situated at Mauja Kogi, Majhiar and Suin was kept joint by Udi Ram through a family settlement of his properties effected on 17.6.1930 and the possession of the same was also kept joint. The plaintiffs and proforma defendants are as such co -owners in possession with defendants No. 1 to 5 in respect of the land situated at Mauja Kogi, Majhiar and Suin and are exclusive owners of the property at Village Pateog. The defendants No. 1 to 5 have no right, title or interest in the suit property averred in the plaint that a family settlement which was carried out by late Sh. Udi Ram, whereas Het Ram and Jagat Ram jointly settled at Mauja Pateog and started to own and possess exclusively the total land which was in the ownership and possession of late Sh. Udi Ram. By virtue of the aforesaid family settlement which was done by late Sh. Udi Ram, late Sh. Het Ram and Jagat Ram became absolute owner in possession of the property situated at village Pateog, Tehsil and District Shimla. To this effect in the column of possession in the revenue record the entries finds mention and the defendants No. 1 to 5 have no right, title or interest over the suit property. It was further averred that during the year 1984 in order to bring the correct position in revenue record, a report was lodged with the Halqua Patwari Kasumpti by Med Ram son of late Sh. Thapi Ram etc. vide rapat rojnamcha No. 407, dated 11th June, 1985. It was averred that plaintiffs and proforma defendants are the absolute owners in possession of the total land at mauja Pateog i.e. suit land. It was averred that some of the land is being acquired by the Government of H.P. for use by the Shimla Development Authority. However, it has revealed now, that the defendants No. 1 to 5 on the basis of wrong revenue entries are trying to claim and withdraw the amount of compensation. It was alleged that necessary award for acquisition of land at Mauja Pateog i.e. suit land is likely to be passed and payments are going to be made within 2 -3 days. It was averred that defendants No. 1 to 5 have no existing right, title and interest and as such, it was submitted that if the partition has not been established in that event, in the alternative, the plaintiffs and proforma defendant Anokhi Ram have been coming in physical, peaceful, open, uninterrupted and hostile ownership and possession of the suit land for the last more than 60 years and as such they have acquired title in respect of the suit property by way of adverse possession. The suit property is situated within the territorial jurisdiction of this Court. The Land Acquisition Collector, Rural Shimla was going to award and make payment of amount of compensation in respect of the suit land in the ownership and possession of the plaintiffs, to the defendants No. 1 to 3. They deserved to be restrained from making any payment of amount of compensation to the defendants in respect of the suit property. The cause of action had arisen a week before filing of the suit within the territorial jurisdiction of the Court and prayed that a decree for permanent prohibitory injunction restraining the defendants No. 1 to 5 from referring any claim over absolute ownership and possession of the plaintiffs and proforma defendants over the land i.e. Khata Khatauni No. 22/42, kita 22 measuring 48.7 bighas land as entered against khata khatauni No. 33/56, Kh. No. 328 measuring 6 bighas and land as entered against Khata Khatauni No. 28/49, Kita 3 measuring 36.19 bighas situated at Mauja Pateog, Tehsil and District Shimla directly or indirectly in any manner personally through their persons, agents, servants, labourers etc. and the plaintiffs and proforma defendants be also declared as owner in possession of the suit land. The defendants be also restrained from interfering in the ownership and possession of the suit land and they also be restrained from using the entries in the revenue record contrary to this position against the plaintiffs in any way. The defendant No.6 be also restrained from making any payment of amount of compensation to the defendants No. 1 to 5 with respect to acquisition of any portion of land at Mauja Pateog.
The defendants No. 1 to 6 contested the suit and filed written statement and raised preliminary objections that the suit being bad for non -joinder of necessary parties, the suit as framed is neither competent nor maintainable, the plaintiffs have no locus standi to file and maintain the present suit, the suit has not been properly valued for the purposes of court fee and jurisdiction, plaintiffs are estopped to file the present suit due to their own acts, deeds etc., the suit is bad for mis -joinder of parties, there is no cause of action in favour of the plaintiffs, the suit is barred by the principles of constructive res judicata and the suit is hopelessly barred by limitation. On merits, denied the averments as maintained in the plaint. The averments of family settlement had been denied. It was submitted that the parties are in joint possession of entire suit property alongwith other. The document dated 17.6.1930 made by late Sh. Udi Ram appears to be forged and fabricated document prepared by the plaintiffs to gain undue advantage over the defendants. It was further denied that the plaintiffs and proforma defendants are the exclusive owner of the suit property. It was submitted that the property is undivided and was never partitioned. It was further submitted that the Sub Judge Court No.3, Shimla in case No. 144/1 of 1990 decided on 15.12.1992, titled Smt. Mathi vs. Anokhi Ram and others decided that the said suit property was joint interse the parties and it was further declared that Smt. Mathi, one of the co -sharers is owner of 1/4th undivided share in whole of the land of Udi Ram. The said document has become final and conclusive as has not been challenged in any court of law. Therefore, the suit is barred by principle of constructive res -judicata. It was further submitted that the possession of the one co -sharer is admitted to be the possession of all the other co -sharers. Therefore, the entry in the column of possession in favour of the plaintiffs and proforma defendants cannot acquire the title to the property by way of partition or by way of adverse possession.

(3.)THE remaining defendants also contested the suit and filed separate written statement claiming that the compensation was awarded as per revenue entries. It was further submitted that the rights of the parties are finally decided by learned Sub Judge, Court No.3, Shimla which judgment has become conclusive and final and the suit is barred by principle of res -judicata. The plaintiffs filed replication and reiterated their claim as maintained in the plaint.