BANTHI LAL Vs. KIRPAL SINGH

JUDGEMENT

(1.) Banthi Lal and Ram Sagar sons of Padam filed a suit in July. 1964 against Kirpal Singh for posses- sion by ejectment of Kirpal Singh from land comprised in Khasra No. 1100 measuring 5 Biswas and situated in village Sangla. The plaintiffs alleged that Kirpal Singh defendant illegally encroached upon the said land with effect from Kharif 1962 and constructed a house, a cattle shed and a grain store thereupon. The defence set up by defendant Kirpal Singh was that the land in suit was given by the father of the plaintiffs to the mother of the defendant 40 or 50 years back for the construction of a house and it was she who took possession of the land and construct- ed the structures. The land was, according to the defendant, Kirpal Singh, given to his mother because she was the sister of the father of plaintiffs Banthi Lal and Ram Sagar. It appears that Sari Lal was, in the first instance, impleaded as a pro forma defendant but by ordir dated 6th October, 1964. he was transposed as a plaintiff. On the pleadings of the parties, the following issues were framed :-

(2.) By judgment dated 21st May, 1963, the learned Subordinate Judge, Kalpa, dismissed the suit holding that defendant Kirpal Singh was the absolute owner of the land in dispute and, therefore, not liable to ejectment. Aggrieved by the said decision, Banthi Lal and Ram Sagar filed on appeal in the Court of the District Judge, Mahasu. In the said appeal Sari Lal was impleaded as a respondent. The appeal was dismissed by the learned District Judge on 16th October, 1967. The plaintiffs have now appealed to this Court. The plaintiffs in support of their claim as to the ownership and possession of the land relied on the various revenue papers. Exhibit P. F./P. G. is a document relating to the settlement proceedings. Plaintiff Banthi Lal in his evidence proved this document but it appears that no exhibit mark was put thereon. According to this settlement, Padam, father of plaintiffs Banthi Lal and Ram Sagar, was in cultivatory possession of the land in dispute. Again, Exhibit P/D is a Jamabandi for the year 1958-1959 in which plaintiffs Banthi Lal and Ram Sagar ar3 shown as owners in possession Exhibit P/C is Girdawari with respect to the said land for the period 10th June, 1960 to 3rd June, 1963. In this document plaintiffs Banthi Lal and Ram Sagar are shown as owners in cultivatory possession till October, 1962. It is stated therein that after 28th October, 1962, Kirpal Singh son of Narotam Dass came into possession by reason of relationship. Besides this, the plaintiffs produced oral evidence in support of their case. Banthi Lal plaintiff appeared as a witness and stated that the plaintiffs were the owners in. possession of the suit land and that from 1962 to June, 1963 he (Banthi Lal) was away to Dehra Dun, his brother had gone to Kalpa and in their absence defendant, Kirpal Singh illegally took possession of the land and constructed a house on it. He also said that the mother of the defendant had constructed the house 20 or 25 years ago and having made that statement clarified it by saying that the mother of the defendant had built the house on her own land but in the absence of the plaintiffs the defendant demolished the same and built it on the site in dispute. Ram Sagar plaintiff also appeared as a witness and supported his case. He corroborated plaintiff Banthi Lal that possession of the land in dispute was taken by Kirpal Singh during Ram Sagar's absence. Keshwa Singh (P.W. 1) said that the suit land was taken as "Nautor" by the plaintiffs 18 or 19 years ago and about three years back Kirpal Singh constructed a 'Kothar' thereupon. Badri Dass (PW. 2), however, said that the defendant was in possession of the suit land for the last 10 or 13 years and had built a house and a 'Kothar' on it. Lachhman Singh (P. W. 3) who also supported the plaintiffs' case and Gita Ram (P. W. 4) Patwari, relying on revenue entries with respect to the year 1962, stated that Kirpal Singh v as shown in possession. The defendant also appeared as his own witness and besides himself examin- ed Nain Singh, Bhagrath Dass, Mohar Ram, Barwag, Ram Dayal Singh and Rama Nand. These witnesses supported the defendant's case that he had been in possession for over 30 years.

(3.) The nature of the structure is not very clear from the evidence. It, however, appears from the inspection report of the learned trial Judge that one room on the first-floor, used as residence, is a wooden structure and the roof over the ground-floor is covered with mud. The learned District Judge while dismissing the appeal does not appear to have taken any notice of the documentarv evidence as I find no discussion thereon in the judgement although I e has made a mention of revenue papers while giving the versions of different parties. The learned trial Judge ordered the inspection of the spot and fixed 17th May, 1966, for the purpose. There is no dispute about the fact that immediately after the inspection the learned trial Judge made an order fixing 21st May, 1966, as the date for the announcement of the judgement. Both the parties attended the inspection and the leaned trial Judge recorded the following report :-