ORDER :

An application moved by defendant for rejection of the plaint under Order 7 Rule 11 of Code of Civil Procedure was dismissed by the learned trial court. This order has been assailed by the defendant in the present petition.

Parties to the litigation are real brothers, sons of late Shri Sant Ram. The status of the parties hereinafter has been referred to as it was before the learned trial court.

2. Facts

Plaint

2(a) a civil suit was filed by the respondent/plaintiff for-

(i) declaration to the effect that the order dated 13.7.2012 passed by the Assistant Collector IInd Grade, Theog, District Shimla was illegal, null and void;

(ii) for permanent prohibitory injunction to restrain the petitioner/defendant from alienating transferring, encumbering, changing the nature of the suit property; and

(iii) for recovery of Rs. 2,00,000/- as damages on account of mental harassment.

2(b) The suit was in relation to property comprised in Khata No. 85/78, Khatauni No. 202/197, Khsra No. 1000, 1001, 1002, 1003, 1004 1005 and 1028 total measuring 02-04-41 Hect. situated in Up Mohal Kalinda, Tehsil Theog, District Shimla. It was pleaded that:-

2(b)(i) The suit property was initially owned by late Shri Sant Ram who had six daughters and three sons. The plaintiff and defendant had 1/9th share in the suit property. The possession of the suit property was with three sons of late Shri Sant Ram i.e. plaintiff, defendant and Shri Rajneesh Sood. Shri Rajneesh Sood, brother of the parties died during the year 1993.

2(b)(ii) Plaintiff shifted to USA in the year 1972. He kept coming to India to maintain and look after his share in the ancestral property. He filed a civil suit No. 67-S/1 of 95/93 against the defendant titled Om Prakash vs. Rajinder Kumar Sood for partition and rendition of accounts. The suit was partly decreed by the learned District Judge, Shimla on 16.9.2000. The decee has though been accepted by the defendant, however, the plaintiff has preferred an appeal against it before this Court. The appeal bearing RFA No. 365/2000 is as yet pending adjudication in this Court. In CMP No. 487/2000 filed in this Regular First Appeal, vide order dated 3.1.2001 the parties including the defendant were restrained from selling, transferring or encumbering the properties in dispute. The order dated 3.1.2001 was modified vide order dated 5.3.2002 to the extent that any transfer or alienation of the subject matter of dispute by any of the parties was made subject to final decision of the appeal and further that the parties will not create any equity in favour of third party. This order is still in force. Suit property involved in the present suit is part and parcel of the properties involved in Civil Suit No. 67-S/1 of 95/93.

2(b)(iii) During pendency of RFA No. 365 of 2000, the defendant moved an application before Assistant Collector IInd Grade ( in short A. C. IInd Gade), Theog under Section 37 of the H.P. Land Revenue Act, 1953 (hereinafter ‘Act’) for correction of entries of possession in the revenue record with respect to the suit property. The A.C. IInd Grade allowed the application vide order dated 13.7.2012. On the basis of this order, mutation No. 15 was attested on 11.9.2012. The order dated 13.7.2012 is to be declared void and illegal for the reasons that :-

(a) Defendant in his application for correction of revenue entries moved before the A.C. IInd Grade had suppressed the orders passed by the High Court in RFA No. 365/2000.

(b) Defendant in a fraudulent manner mentioned wrong address of the plaintiff in his application under Section 37 of the Act with a view to obtain order behind the back of the plaintiff.

(c) Defendant impleaded Shri Rajneesh Sood (brother of parties) in the application by his nickname ‘Kuka’ despite being aware that Shri Rajneesh Sood had died during the year 1993.

(d) The plaintiff was not served in the application moved by the defendant under Section 37 of the Act.

2(b)(iv) The order passed by the A.C. IInd Grade on 13.7.2012 cam