RSA No. 55 of 2006. Case: Nand Lal Vs Sanjana Sood and Ors.. Himachal Pradesh High Court

Case NumberRSA No. 55 of 2006
Party NameNand Lal Vs Sanjana Sood and Ors.
CounselFor Appellant: Ramakant Sharma, Advocate and For Respondents: G.D. Verma, Senior Advocate and B.C. Verma, Advocate
JudgesSandeep Sharma, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order XXVI Rule 9; Section 100
Judgement DateMarch 14, 2017
CourtHimachal Pradesh High Court

Judgment:

Sandeep Sharma, J.

  1. Instant regular second appeal filed under Section 100 CPC is directed against judgment and decree dated 30.9.2005 passed by the learned Additional District Judge, Ghumarwin in Civil Appeal No. 243/13 of 2004/2001, affirming the judgment and decree dated 19.6.2001 passed by the learned Sub Judge 1st Class, Ghumarwin in Case No. 10/1 of 1994, whereby suit for declaration/permanent injunction/possession having been filed by the appellant/plaintiff (herein after referred to as, 'plaintiff') was dismissed.

  2. Briefly stated, facts as emerge from the record are that the plaintiff filed a suit for declaration/permanent injunction and possession claiming himself to be owner-in-possession of the suit land measuring 0-5 Biswa comprising Khasra No. 476/369 situated in Village Dakri Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, HP. Plaintiff further averred in the plaint that the defendant without having any right, title or interest over the suit land started interfering in the same and raised pillars over 7 Biswansis shown as Khasra No. 476/369/1. In the aforesaid background, plaintiff sought declaration that he is owner-in-possession of the suit land. Apart from above, plaintiff also prayed for relief of possession qua land measuring 7 Biswansis comprising of Khasra No. 476/369/1 after dismantling the construction of the defendant. Plaintiff also claimed relief of permanent injunction restraining the defendant from interfering in any manner in the suit land.

  3. Defendants, by way of written statement, refuted the claim of the plaintiff as put forth in the plaint, on the ground of maintainability, cause of action, jurisdiction of the Court, locus standi, estoppel, valuation of the suit for the purpose of court fee, jurisdiction and limitation etc. On merits also, defendants claimed that they have raised construction over their own land, which was completed in the year 1972 and they have no claim/right over the land of the plaintiff. Defendants also averred in the written statement that they have never intended to interfere in the suit land and as such sought dismissal of the suit of the plaintiff.

  4. Plaintiff while reasserting his claim by way of rejoinder, denied the averments contained in the written statement. Learned trial Court, on the basis of pleadings framed following issues:

    1. Whether the plaintiff is owner in possession over the suit land? OPP

    2. Whether plaintiff is entitled to the relief of permanent injunction as prayed? OPP

    3. Whether the plaintiff is entitled to the relief of possession as alleged? OPP

    4. Whether the suit is not maintainable? OPD

    5. Whether plaintiff has no cause of action? OPD

    6. Whether this court has no jurisdiction to try the suit? OPD

    7. Whether the plaintiff has no locus standi to file the suit? OPD

    8. Whether the plaintiff is estopped to file the suit due to his act and conduct? OPD.

    9. Whether the suit is not properly valued, OPD.

    10. Whether the suit is barred by limitation? OPD

    11. Relief.

  5. Subsequently, vide judgment and decree dated 19.1.2006 learned trial Court partly decreed the suit of the plaintiff to the effect that he was owner-in-possession of the suit land comprising of Khasra No. 476/369 Khata Khatauni No. 220/317 land measuring 0-5 Biswas, situated in Village Dakri, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur. However, suit for permanent injunction and possession qua 7 Biswansis of land was dismissed. Plaintiff being aggrieved and dissatisfied with dismissal of his suit for injunction and possession, filed an appeal before the Additional District Judge, Ghumarwin, who also dismissed the same and upheld the judgment and decree passed by learned trial Court. Hence, this Regular Second Appeal.

  6. Present regular second appeal was admitted on 17.10.2006, on the following substantial question of law:

    Whether the dismissal of the application moved by the plaintiff for appointment of Local Commissioner for the purpose of carrying out the demarcation has resulted in miscarriage of justice?

  7. Mr. Ramakant Sharma, learned...

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