IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA .

FAO No. 31 of 2024 Reserved on: 1.7.11.2025 Date of deciHsion: 27.11.2025 ________________________________________________

Daulat Ram & others.

…..Appellants.

Versus Ashok Kumar.

……Respondent.

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Coram r The Hon'ble Mr. Justice Sushil Kukreja, Judge.

1 Whether approved for reporting?

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For the appellants: Mr. J.R. Poswal, Advocate. For the respondent: Mr. Mohit Jaitak, Advocate (through Video Conferencing).

hSushil Kukreja, Judge.

The instant appeal is maintained by the appellants, who were plaintiffs before the learned Trial Court (hereinafter referred to as “the plaintiffs”) under Order 43 Rule-1 (U) read with Section 104 CPC against the judgment dated 26.08.2023, passed by learned Additional District Judge-II, Una, District Una, H.P., whereby the appeal preferred by the respondent herein, who was defendant before the learned Trial Court (hereinafter referred to as “the

1 Whether reporters of Local Papers may be allowed to see the judgment?

defendant”) was allowed and the judgment and decree passed by learned Senior Civil Judge, Una, District Una, H.P., was set aside and the suit was remanded back to the learned Trial Court for decision afresh. The appellants prayed that the instant appeal be allowed and impugned judgment, dated 26.08.2023, in Civil Appeal No. 18-XII- 22/2021, passed by learned Additional District Judge-II, Una, District Una, H.P., be quashed and set-aside.

2(a). The case of the plaintiffs is that they are owners- in-possession of the land comprised in Khewat No. 1696, khatauni No. 2130, khasras No. 7127 and 7126, measuring 21 kanal 02 marla and they had mortgaged 1/4^th share out of this land to Tilak Raj and Ravi Kumar (who include their predecessors-in-interest) and remaining 3/4^th share continued in possession of the plaintiffs as owners. It has been averred that a petition seeking redemption of the aforesaid mortgaged land was pending in the Court of learned Sub Divisional Officer (Civil), Una, exercising the powers of Collector.

2(b). The plaintiffs averred that Lakhbir Singh and Tarsem etc. (who include their predecessors-in-interest), in connivance with the Revenue Officials and mortgagees at the back of the plaintiffs fraudulently procured fictitious entries in possessory column in their favour showing them as Gair Marusi tenants under the mortgagees in the revenue record with intention to grab the aforesaid land by taking undue benefit of the fact that the plaintiff had been residing for the last 35-40 years in village Sanjhot, which was at a distance of about 25 kilometers from village Badhera, where the suit land is situated for the last 35-40 years. As per the plaintiffs, Lakhbir Singh and Tarsem etc. were never inducted as Gair Marusi tenants by the plaintiffs. The defendants had forcibly taken possession of the suit land about one and half years back, prior to filing of the suit by them, and raised construction of three rooms, veranda, kitchen, bathroom and installed hand pump etc. on the same by taking undue benefit of the absence of the plaintiffs without their consent. As per the plaintiffs, the possession of the defendant over the suit land was illegal and only that of a tress-passer. The defendant also threatened the plaintiffs to further encroach upon khasra No. 7127. Lastly, the plaintiffs prayed that their suit for possession be allowed.

2(c). The defendant resisted the claim of the plaintiffs by filing a written statement raising preliminary objections, viz., cause of action, estoppel, maintainability, locus standi, res-judicata, limitation etc. On merits, it was averred that the suit and remaining land mentioned in the plaint had been coming in possession of Bakshi Ram, Tarsem and Chanan sons of late Shri Nathu, as tenants on payment of Chokota under the plaintiffs and recorded mortgragees. Bakshi Ram etc. had become owners of the suit land under the Himachal P