KESHAV Vs. GIAN CHAND

JUDGEMENT

(1.) The judgment under challenge dated 8th August 2018 passed by the Single Judge of the High Court of Himachal Pradesh at Shimla allows the second appeal and decrees the suit filed by the plaintiffs Gian Chand and Dhanbir, setting aside concurrent findings of the trial court and the first appellate court. Aggrieved, Keshav and five other defendants have preferred this appeal. The dispute relates to land admeasuring 13 bighas 8 biswas being 7/20th share of total land measuring 38 bighas 6 biswas in Mouza Jakharal, and 1.17 bighas being 1/3rd share in 5.12 bighas in Mohalo Talai, which land was owned by Hardei, who died issueless in 1991. Gian Chand is the son of Hardei's brother, whereas Keshav is her sister's son.

(2.) Gian Chand and Dhanbir, on 4th/6th December 1991, instituted Civil Suit No. 149 of 1991 for declaration that late Hardei had gifted the land to them during her lifetime vide gift deed dated 23rd December 1985 (Ex. PW-3/A), which was registered with the SubRegistrar, Salooni, on 1st January 1986. Gian Chand and Dhanbir were put in possession of the land by Hardei. Keshav in connivance with defendants No. 2 to 6 had got mutation recorded in his favour, which mutation was wrong and illegal and did not affect their rights under the gift deed. Gian Chand and Dhanbir had prayed for: (i) decree of declaration that they were owners in possession of the land; (ii) a decree of permanent injunction restraining Keshav and others from interfering with their possession of the land; and (iii) in case they are disposed from the land by the defendants during the pendency of the suit, a decree for possession.

(3.) Keshav and other defendants contested the suit on several grounds including validity of the relied upon gift deed. Keshav claimed that he was a tenant in occupancy of the land for over 15 years, a fact admitted by Hardei before the revenue authorities. Keshav had therefore acquired rights over the land. Hardei, during her lifetime, had denied execution of the gift deed and opposed the request of mutation of the land in favour of Gian Chand and Dhanbir, which request for mutation was rejected in 1989.