NAGAHI RAM Vs. HARI RAM

JUDGEMENT

(1.) THE suit in the appeal had been dismissed by the courts below, rejecting the claim of the plaintiffs for declaration that they are owners in possession of the property. The plaintiffs had claimed that the property belonged to the their grand father. The contention was that the same had been abandoned by the defendant's predecessors in favour of the plaintiffs predecessors. The plaintiffs relied on revenue entries from the year 1975 -1976 showing that the property was being cultivated by the plaintiffs but against the ownership column the defendant's name had been entered. The two courts have held that the plaintiffs had not been able to establish their ownership and they themselves did not raise any objection with regard to the revenue entry showing the defendant as owner. The plaintiffs contented that they had put up construction and they had been living there for more than 15 -16 years and that they had also sunk a bore well. The suit was resisted by the defendant on a contention that he and his ancestors never abandoned the property in the village and they remained owners of the same, but they had been coming to the village to mortgage the property and to take the produce. It was also in defence that the suit land had for some time been given on lease to the plaintiffs who used to pay batai to the defendant and that plaintiffs had always recognized the defendant as owner of the land. It was also contended that the land measuring 2 kanal and 13 marlas compromised in Khasra No. 156/224 and Rectangle No. 16 in Khasra No. 1/2 had been mortgaged by the defendant's predecessors to the plaint ill's' predecessors. It was also stated that the property which was held in ownership of the defendant had been sold during the pendency of the suit to one Amar Singh on 24.6.1992. The suit was dismissed holding that the revenue entries themselves refer to the property as the property belonging to the defendant. They had not also pleaded adverse possession. Consequently, the plaintiffs could not claim themselves as owners. The trial court held in issue No. 3 that although the plaintiffs were not owners of the property, but they were the persons in possession of the suit land and decided accordingly in favour of the plaintiffs and against the defendant. However, he ultimately dismissed the suit holding that the defendant is the owner and question of declaration does not arise. It was against that judgment that the plaintiffs had preferred an appeal, which was also dismissed, finding that the ownership of the defendant cannot be denied and the plaintiffs had not produced any abandonment of the rights of the ownership to the plaintiffs or his predecessors.

(2.) THE following substantial questions of law arise for consideration in this second appeal: - -