SHAMBHU RAM Vs. LAKHU AND OTHERS

JUDGEMENT

(1.) Instant Regular Second Appeal has been filed against judgment and decree dated 24.8.2006, passed by the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, HP in Civil Appeal No. 21-P/04/02, reversing judgment and decree dated 18.1.2002 passed by Sub Judge (II), Palampur in Civil Suit No. 252/1997, whereby suit for permanent prohibitory injunction filed by the present appellant-plaintiff (herein after referred to as 'plaintiff') was decreed.

(2.) Briefly stated, facts as emerge from the record are that the plaintiff filed a suit for grant of decree of permanent prohibitory injunction under Sections 36 to 39 of the Specific Relief Act, restraining the respondents-defendants (herein after referred to as 'defendants') from taking forcible possession, digging any portion of the land, cutting trees, uprooting the boundary forcibly, or constructing any passage/road on the land, comprising Khata No. 216, Khatauni No. 449, Khasra Nos. 378 and 1295/381 (Kita 2) land measuring 0-25-40 Hects vide Jamabandi for the year 1991-92, situated in Mohal Banuri Khas, Mouja Banuri, Tehsil Palampur, District Kangra, HP, or interfering in the land in any manner, whatsoever. It is further averred in the plaint that plaintiff is cosharer in the suit land and land was allotted to him under the Scheme of allotment to the landless persons by the Government of HP. Plaintiff and his brothers made the suit land cultivable after spending huge amount, thereafter proprietary rights were also conferred upon the plaintiffs as is evident from Jamabandi for the year 1991-92. Plaintiff further claimed that he planted trees of Tunni, Eucalyptus, Poplar, Khirak, Orange etc. way back in the year 1989-90. In para-4 of the plaint, specific averments are made that there is one path, which is also recorded in the revenue record adjoining to the boundary of plaintiff's land and used by villagers. Plaintiff further averred that for the convenience of the general public, the plaintiff has also given one path from his land itself. Defendants threatened to construct forcibly a road through the suit land. Defendants intended to trespass over the suit land and started digging the suit land to construct road, hence, the suit was filed.

(3.) Defendants filed written statement taking preliminary objections of maintainability, estoppel, cause of action and suit being bad for non-joinder /mis-joiner of necessary parties. Defendants set up a case that suit land was 'Shamlat' prior to allotment to the plaintiff and was being used by the villagers as Charand and old path was there, which was 100 years old. They further submitted in the written statement that path was very old and Kanungo had visited the spot and submitted his report to the Tehsildar for incorporating the path in the revenue record. He placed on record Annexure A. In the aforesaid background, defendants prayed for dismissal of the suit.