The absence of a registered document of exchange and the principle that mutation does not confer or extinguish title were central to the Court's decision.

P.S. Rana, J.

1. Present regular second appeal is filed under Section 100 of Code of Civil Procedure 1908 against judgment and decree passed by learned District Judge Shimla (H.P.) in Civil Appeal No. 29-S/13 of 2000 title Dharmi and others vs. Jania.

Brief facts of the case

2. Plaintiff filed suit for permanent prohibitory injunction restraining defendants from interfering in suit land comprised in Khata No. 173 min, Khatauni No. 431 Khasra No. 325 min old new Khasra No. 1467 situated in mauja Karalash Tehsil Rohru District Shimla H.P. It is pleaded that suit land was previously owned and possessed by Shanti Kumar and Mohan Dutt sons of Bihari Lal. It is pleaded that vide mutation No. 6403 suit land was purchased by Gita Ram. It is pleaded that suit land was exchanged with plaintiff by Gita Ram vide mutation No. 113 dated 15.10.1994 and plaintiff became exclusive owner in possession of suit land. It is pleaded that Shyam Piari filed civil suit No. 34-1 of 1990/59-1 of 1992 title Shyam Piari vs. Gita Ram in the Court of learned Civil Judge Rohru and same was decided on 28.4.1994. It is pleaded that right of plaintiff is not effected by former civil suit. It is pleaded that defendants Nos. 1 to 7 interfered in possession of plaintiff and threatened the plaintiff to dispossess from suit land. It is pleaded that defendants Nos. 1 to 7 have no right title or interest in suit land and prayer for decree the suit as mentioned in relief clause sought.

3. Per contra written statement filed on behalf of defendants pleaded therein that plaintiff is estopped from filing the present suit by his act conduct and acquiesance. It is pleaded that former suit was filed by wife of plaintiff Shyam Piari on the basis of exchange and in alternative on the basis of right of adverse possession and same was dismissed by learned Civil Judge Rohru on 28.4.1994 in which plaintiff was one of co-defendants. It is pleaded that present suit is hit by principles of resjudicata. It is pleaded that plaintiff has no locus standi to file the present suit and plaintiff is not in possession of suit land. It is pleaded that defendants have raised the apple orchard over suit land. It is pleaded that suit land is in settled possession of defendants for the last more than 40 years. It is pleaded that Gita Ram did not become exclusive owner of suit land at any point of time. It is pleaded that suit land was not exchanged at any point of time as pleaded in plaint. It is pleaded that mutation No. 113 dated 15.10.1994 of exchange is illegal. It is pleaded that plaintiff has no cause of action to file the present suit and prayer for dismissal of suit sought.

4. Plaintiff also filed replication and re-asserted allegations mentioned in plaint. As per the pleadings of parties learned Trial Court framed following issues on 22.6.1996:-

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

2. Whether defendants interfere with possession of the plaintiff as alleged? OPP

3. Whether plaintiff is estoped to file the present suit as alleged? OPD

4. Whether suit is hit by principle of resjudicata as alleged? OPD

5. Whether suit is hit under Section 10 CPC as alleged? OPD

6. Relief.

5. Learned Trial Court decided issues Nos. 1 and 2 in affirmative and decided issues Nos. 3 to 6 in negative. Learned Trial Court decreed the suit filed by plaintiff and restrained the defendants permanently by way of prohibitory injunction from interfering in suit land.

6. Feeling aggrieved against judgment and decree passed by learned Trial Court Shri Dharmi and other defendants filed Civil Appeal No. 29-S/13 of 2000 title Dharmi and others vs. Jania before learned District Judge Shimla and learned District Judge Shimla on 11.11.2002 accepted the appeal and set aside the impugned judgment and decree passed by learned Trial Court. Learned first Appellate Court dismissed the suit of plaintiff with costs throughout.

7. Feeling aggrieved against the judgment and decree passed by learned fir