Kuldip Singh, J.—The plaintiff is in appeal against the judgment and decree dated .1.1.2000 passed by learned District Judge, Shimla in Civil Appeal No. 71-S/13 of 1997 setting aside the judgment and decree dated 16.7.1997 passed by learned Senior Sub Judge, Shimla in case No. 96/1 of 97/90 and returning the plaint to the plaintiff.

2. The facts, in brief, are that plaintiff/appellant filed a suit for declaration that he is owner in possession of 85 Bighas land out of the land bearing Khasra No. 184 and 2-7 Bighas land out of land bearing Khasra No. 62 situated in Mauza Khalag, Pargana Bagi, Tehsil and District Shimla. He has also prayed for mandatory injunction directing the defendants either to remove the debris and boulders thrown on the suit land in the course of construction of Jubbar Hatti Airport road and to restore the land to its original condition or to take immediate steps for acquisition of the suit land.

3. The plaintiff has pleaded that he is owner of land measuring 49- 18 Bighas bearing Khasra Nos. 75, 53, 295/25 and 22 situated in Mauza Khalag, Pargana Bagi. Land measuring 223-19 Bighas bearing Khasra No. 184 and 6-19 Bighas bearing Khasra No.62 situated in Mauza Khalag is recorded as Shamlat Hasab Rasad Araji Khezvat in the column of ownership and it is shown in possession of Makbuja Malkan, in the column of rent, the entry is Mai Shamal Khewat (revenue is included in the respective Khewats) and, therefore, the same was not shamlat land within the meaning of Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 and it could not have vested in the Panchayat under the provisions of said Act and later on in the State under the H.P. Village Common Lands (Vesting and Utilization) Act, 1974 (for short the Act). Plaintiff being one of the Khewatdars and his share in the Khewat being one third, he is owner to the extent of one third area of Khasra No. 184 which comes to 85 Bighas and one third area of Khasra No. 62 which comes to 2-7 Bighas.

4. The further case of the plaintiff is that he is coming in continuous possession of suit land since the time of his predecessors. The defendants while constructing the Airport at Jubbar Hatti threw debris on 18-13 Bighas portion of Khasra No. 184 and 2-7 Bighas area of Khasra No. 62 belonging to the plaintiff due to which said portions were badly damaged. The plaintiff made many requests to Land Acquisition Collector to assess the damage caused to the aforesaid two portions of the suit land, but no heed was paid.

5. A writ petition was filed being CWP No. 113 of 1987 in the High Court and a direction was issued to defendant No. 2 Land Acquisition Collector to assess the damages, payable on account of damage caused to the land of private owners in the course of construction of Airport. The defendant No. 2 assessed the compensation of Khasra No. 184 measuring 18-4 Bighas which is different from 18-13 Bighas allegedly belonging to plaintiff and damaged by throwing debris and no compensation was assessed with respect to suit land belonging to the plaintiff. The plaintiff served a notice under Section 80 C.P.C. on defendant No. 1 and ultimately filed the suit.

6. In the written statement, defendants have taken the plea that suit is not maintainable, the plaintiff is estopped from filing the suit and he has no locus standi nor did he has any cause of action. The State of Himachal Pradesh is the owner of the suit land. It has been denied that the suit land is owned and possessed by plaintiff. The suit land had vested in the State of Himachal Pradesh under the Act and before that it had vested in Gram Panchayat under the provisions of Punjab Village Common Lands (Regulation) Act. The plaintiff became owner in the village when Molku gifted one sixth share in the Khewat in his favour and his claim that he is owner in possession to the extent of one third share in the Khewat is incorrect. A major portion of Khasra No. 184 to the extent of. 115-3 Bighas had been allotte