PRATAP SINGH Vs. MANGAL KHAN

JUDGEMENT

(1.) This second appeal has been filed at the instance of plaintiff against the reversing judgment of learned First Appellate Court allowing the appeal of defendants and setting aside the judgment and decree of learned trial Court decreeing the suit of plaintiff.

(2.) The plaintiff-appellant filed suit for possession and injunction in respect of certain agricultural land which is the subject-matter of the suit and the description whereof has been mentioned in the plaint. According to the plaintiff, he is the Bhumiswami of the suit property and the defendants who are father and son have encroached upon the suit property area 0.75 acres delineated in the map filed along with the plaint in Asad Samwat 2036 (June, 1979). The suit has been filed on the basis of occupancy tenancy right which was conferred to plaintiff vide order dated 31-5-1974 passed by the Naib Tahsildar in Case No. 7A/46/73-74 and it was directed that his name be entered as occupancy tenant in the revenue record. It is the further case of plaintiff that he submitted an application in the Revenue Court which was registered as Case No. 32A/12/1979-80 and the measurement of his land was made by the Revenue Court and it was found that defendants are illegally possessing 0.75 acres of land of which the plaintiff is the occupancy tenant. Despite the plaintiff served notice on the defendants they did not remove their illegal possession and hence, the suit has been filed for possession on the basis of title of occupancy tenancy right against the defendants who are strangers and trespassers according to the plaintiff.

(3.) The defendants filed written statement and denied the plaint averments. According to them, the land was owned by one Harbans Singh who is residing for years together in Delhi and left the village Kanjiya. The inhabitants of the village have illegally taken possession of his land. The plaintiff and defendants have also encroached upon the land of said Harbans Singh. According to them, the Revenue Court wrongly found the plaintiff to be the occupancy tenant of said Harbans Singh and further that he is possessing the land as an occupancy tenant. The defendants further pleaded that they are possessing the suit property for last 25 years (the written statement was filed on 5-11-1981) and denied this fact that they encroached upon the suit property in June, 1979 (No revenue record has been filed by them). A plea of adverse possession has also been set up by the defendants. Hence, it has been prayed that the suit be dismissed.