MADAN KISHORE Vs. MAJOR SUDHIR SEWAL

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and decree passed by a learned Judge of the High Court of Himachal Pradesh in Regular Second Appeal No. 281 of 1988 reversing the judgment and decree dated 19th of May, 1988 passed by the Additional District Judge, Nahan and the judgment and decree dated 30th of March, 1985 passed by the Subordinate Judge (First Class - Paonta Sahib, Dist. Sirmaur, whereby the Second Appeal filed by the plaintiffs/respondents was allowed and thereby, the suit filed by them was decreed. Be it mentioned herein, the original plaintiff died during the pendency of the suit and his heirs and legal representatives were substituted in his place.

(2.) The case made out by the original plaintiff (since deceased) in his plaint, may be summarized as follows :- One, Randeep Singh, was the owner of the land measuring 83 bighas, 7 biswas comprising in Khata Nos. 11/38 to 11/41 in village Amboa, Tehsil - Paunta Sahib, Dist. Sirmaur. The said land was under the tenancy of Kundan Singh, Gulab Rai and Jaishi Ram, sons of Sukh Dayal to the extent of 1/3rd share each. After the death of Kundan Singh, Gulab Rai and Jaishi Ram, the tenancy rights were inherited by their heirs and legal representatives. Bhanu Pratap Singh, son of Kunda Singh, was residing, at the relevant point of time, in Nigeria, whereas Jagdarshan Lal, son of Gulab Rai, was in Government service in Uttar Pradesh. Accordingly, the abovementioned land was given in management to the defendant No.1/appellant-Madan Kishore who cultivated the same for and on behalf of all the heirs and legal representatives of the aforementioned tenants. Out of the aforesaid land, comprised in Khasra Nos. 102, 104, 208 and 277, as described in the Jamabandi for the year 1974-75, (hereinafter referred to as the "suit land") is the land, which is under dispute. After coming into force of the Himachal Pradesh Abolition of Big Landed Estates and Reforms Act, 1953 (in short the "Act", the defendant No. 1/appellant got himself recorded as sub-tenant in respect of the suit land and on the basis of such entry in the record of rights obtained proprietary rights thereof on 23rd of March, 1967. After obtaining the proprietary rights, some land, out of the suit land, was sold by the defendant No. 1/appellant to defendant No. 2/respondent. Defendant No.1/ appellant also created mortgage in respect of the remaining suit land in favour of defendant No. 3/respondent. Jagdarshan Lal (since deceased) who was the original plaintiff in the suit and in his place his heirs and legal representatives were brought on record came to know about the wrongful entry in the revenue record in the name of the appellant in 1978. Jagdarshan Lal, the original plaintiff (since deceased) further pleaded that the defendant No.1/appellant was holding the suit land as a trustee and licensee on his behalf and could not have acquired proprietary rights in respect of the suit land under the Act and the sale and mortgage effected by him in favour of defendant Nos. 2 and 3/respondents was null and void and such transfer was not binding either on the deceased plaintiff or on them being his heirs and legal representatives. As noted herein earlier, the original plaintiff Jagdarshal Lal died during the pendency of the suit and the present respondents in this Court, being his sons, daughters and widow were substituted in his place. Upon the aforesaid allegations made in the plaint, the original plaintiff (since deceased) had filed a suit for declaration of title and for possession in respect of the suit land against the appellant and others.

(3.) The defendant No.1/appellant entered appearance and contested the suit by filing a written statement denying the material allegations made in the plaint. In the written statement, the appellant, however, admitted that the suit land along with some other land was originally under the tenancy of Kundan Singh, Gulab Rai and Jaishi Ram, but he denied the exclusive possession of Jagdarshan Lal (since deceased, original plaintiff, over the suit land or that the same was given to him by deceased Jagdarshan Lal as a trustee or licensee. It was further averred by the appellant in his written statement that Jagdarshan Lal was residing in Uttar Pradesh and he had inducted defendant No.1/appellant as a sub-tenant in respect of the suit land and that on coming into force of the Act, he acquired proprietary rights in respect of the same in 1967. He also pleaded in his written statement that a part of the suit land was sold by him for consideration to defendant No.2, while the remaining part of the suit land was mortgaged by defendant No.1/appellant to defendant No. 3/respondent. A plea of adverse possession was also taken in the written statement by the appellant. Accordingly, defendant No.1/appellant sought for dismissal of the suit.