Duglu Ram vs Makar

V.K. Ahuja, J.—This is a Regular Second Appeal filed by the appellant/plaintiff against the judgment and decree dated 11.12.2000 passed by the learned District Judge, Mandi, affirming the judgment and decree of the Court of learned Sub Judge Ist Class, Sunder Nagar, dated 25.3.1997, vide which the suit of the plaintiff for permanent prohibitory and mandatory injunction was dismissed. Briefly stated, the facts of the case are that the appellant, hereinafter referred to as the plaintiff, filed a suit for permanent prohibitory and mandatory injunction as against the respondents, hereinafter referred to as defendants No. 1 and 2. It was alleged by the plaintiff that he has purchased the land in suit comprised in Khasra No. 393 measuring 0-2-10 bighas, as detailed in the plaint vide an agreement dated 15.11.1990 from one Smt. Shanti Devi, who was the real and actual owner of the property. It was alleged that the said Shanti Devi had sold the land to the plaintiff at the time of execution of the agreement and the plaintiff is in possession of the suit land as owner. The defendants were allegedly interfering in possession of the plaintiff by having started construction of a house in the courtyard of the plaintiff over the suit land without any right. Hence, the suit filed by the plaintiff.

Defendant No. 1 pleaded that the suit land was not in possession of the plaintiff and as such, the suit was not maintainable. The plaintiff was neither owner nor in possession of the said land. It was alleged that the suit land is owned by Smt. Shanti Devi, who is owner in possession and defendant No. 1 at the instance of Smt. Shanti Devi is looking after this property. It was denied that any agreement was executed by Smt. Shanti Devi. Defendant No. 2 also denied that the plaintiff was owner in possession of the suit land. He pleaded that Smt. Shanti Devi had acquired the ownership right under the Nautor Scheme and she has no right to sell or transfer the same to anyone and as such, the agreement to sell in question was void.

On the pleadings of the parties, the following issues were settled by the learned trial Court:-

Whether the plaintiff is owner in possession of the suit property on the basis of an agreement dated 15.11.1990, as alleged? ... OPP

Whether the defendants started interfering in the peaceful possession of the plaintiff over the suit property, as alleged? ... OPP

Whether the defendant No. 1 is in physical possession of the suit property with the consent of Smt. Shanti Devi, its owner, as alleged? ... OPD-1

Whether the suit is bad for non-joinder of necessary parties? ... OPD

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

Whether the plaintiff has no legally enforceable cause of action? ... OPD

Whether the suit is not maintainable? ... OPD

Whether the plaintiff is estopped to file the present suit? ... OPD

Whether the suit is not properly valued for the purpose of court fee and jurisdiction? ... OPD

Relief.

Parties led their evidence and the learned trial Court vide its judgment decided Issues No. 1 and 2 as against the plaintiff and in favour of the defendants and consequently, dismissed the suit.

On appeal, those findings were affirmed by the learned District Judge vide his judgment dated 11.12.2000, which judgment is under challenge.

I have heard the learned counsel for the parties and have gone through the record of the case.

A perusal of the record shows that the appeal was admitted on the following substantial questions of law:-

Whether the embargo created by Rule 12 of The H.P. Nautor Rules, which forbid the grantee to sell or alienate the land within the specified period will be governed by the period specified in the rules, as it was existing at the time of grant of nautor or the rules amended thereafter?

Whether in a suit for injunction against a third party, the real owner is a necessary part, and the matter could have been decided without impleading the real owner?

The submissions made by the learned counsel for the appellant were that the findings to the contrary of both the Courts below are liable to be set aside and the suit deserves to be decreed accordingly. On the other hand, learned counsel for respondent No. 1 had supported the impugned judgment for the reasons given therein.

On appraisal of the findings of the learned trial Court, it is clear that the previous owner Smt. Shanti Devi was owner in possession since the land was allotted to her as a Nautor land. According to the observations made by the learned trial Court, while referring to the scheme, the land could not have been transferred by Smt. Shanti Devi upto the year 1996 since there is a note in the copy of jamabandi Ext. PW1/A in this regard. The limitation was 20 years at that time when the land was allotted to Smt. Shanti Devi on 9.6.1976 and as per the terms and conditions of the Nautor Policy, it could not have been disposed of by her till 9.6.1996, that is, for a period of 20 years. The plaintiff had proved an agreement allegedly executed in between the said owner Smt. Shanti Devi and the plaintiff for transferring of the land, but the learned trial Court after referring to the judgment of this Court in Chet Ram and Others Vs. Sawanu Ram and Others, , had held that the land could not have been sold by the allottee, who got the land under Nautor Scheme. These findings were affirmed by the learned District Judge in its judgment, who has also made a reference to the decision relied upon by the learned trial Court.

Keeping in view the findings recorded by both the Courts below relying upon the judgment of this Court, there is no question of considering the said Policy as being against the rules and the plaintiff himself had not impleaded the previous owner as a party, who was a material party and, therefore, the suit was rightly dismissed by the learned trial Court, which findings were affirmed by the learned District Judge. No case is made out for reappraisal of the evidence or the conclusions arrived at by both the Courts below. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed. However, the parties are left to bear their own costs.