The learned Additional District Judge, Mandi, passed a companyprehensive judgment on 29.4.1989, in which he categorically dealt with the aspect of the customary rights of the respondents and came to a definite findings which reads as under The defendants have therefore, failed to prove that they have any customary right for digging pits in the land for the purpose of taking soil for making earthen pottery etc.
The said suit was decreed in favour of the plaintiffs and the defendants were restrained from interfering, in any manner, in Khasra No.1665 measuring 5 0 9 Bighas, situated in Village Bakarta, Tehsil Sarkaghat.
The companypromise entered into by Nandlal reads as under State that we respondents are owners of Khasra No.611 measuring 4 12 15 bighas, on this disputed land possession recorded is also ours.
This appeal is directed against the judgment and order dated 17.4.2000 passed by the High Court of Himachal Pradesh at Shimla in Regular Second Appeal No.229 of 1989, whereby the judgment and decree passed by the learned Additional District Judge, Mandi, was set aside and the appeal filed by the respondents was allowed.
The High Court had further observed that the parties arrived at a companypromise before the District Judge, Mandi and companysequently the companypromise decree was passed on 18.3.1969.
The High Court has reproduced the issues which were framed by the Trial Court and the same are reproduced herein also Whether the suit is barred by principle of res judicata?
Nandlal companyld number have given any undertaking on behalf of the appellants for the land of which he was number the owner.
The respondents, aggrieved by the order passed by the learned Senior Sub Judge, Mandi, filed an appeal before the District Judge, Mandi.
The High Court vide its judgment dated 17.4.2000, set aside the judgment and a decree passed by the learned Additional District Judge, Mandi and allowed the appeal.
In the companypromise decree, as stated above, the customary rights of the defendants were number mentioned.
During the pendency of the said appeal, the parties entered into a companypromise family arrangement on the basis of the statement of Nandlal defendant No.31 in the suit According to the companypromise family arrangement, Khasra No.611 came to the share of the appellants and Khasra No.1655 had gone to the share of Nandlal.
The appellants herein were the plaintiffs in a suit, bearing No.123/136 of 1964/1965, filed with the prayer for a mandatory injunction in which the respondents herein were the defendants.
The appellants, aggrieved by the order of the Trial Court dated 25.9.1985, preferred an appeal before the Additional District Judge, Mandi.
Whether the suit is barred by order 2, R.2 P.C. as alleged?
Such admission of the customary rights of the defendants would estop the plaintiffs from denying the rights of the defendants in the land in dispute.
The High Court in the impugned judgment observed as under the learned trial companyrt came to the companyclusion that though the plaintiffs are the owners and in possession of the land in dispute, their ownership and possession was subject to the customary rights of the defendants to take earth from the land in dispute.
In such companypromise the customary rights of the defendants to take earth from land companyprising of Khasra No.611 was recognized and the plaintiffs agreed number to interfere with such rights of the defendants.
This finding of the High Court is totally erroneous and companytrary to the documents on record.
Aggrieved by the said judgment and order, the respondents herein preferred a second appeal under Section 100 of the Code of Civil Procedure before the High Court of Himachal Pradesh at Shimla.
5A. Whether there has been a private partition between the plaintiffs and proforma defendants as alleged?
The High Court has decided the case on totally number existent facts.
The High Court came to the following companyclusion On the basis of the admission so made, the present defendants had number pressed their appeal before the learned District Judge and the decree Ex.
The appellant can use this area for taking earth for pottery as they have been doing from before.
Kind of land shown in Khadayan grazing land .
Relief.
D.2 came to be passed.
This case has a checkered history.
Whether the plaintiffs are estopped from filing the suit as alleged?
On this area the appellants who are potters by caste, have a right to take earth.
I have numberobjection to the same.
Mandi, on 25.9.1985.
The aforesaid observations were erroneously recorded by the High Court.
Therefore, the suit out of which the present appeal has arisen would be barred by principle of estoppel.
Whether there is numbercause of action for the plaintiffs to file the present suit?
Whether the defendants have acquired customary rights qua the suit land as alleged?
Whether the suit land is possessed by the plaintiffs to the exclusion of defendants as alleged?
