SANTOKH SINGH Vs. TARSEM SINGH

JUDGEMENT

(1.) This is an appeal filed by Santokh Singh, legal representative of Smt.Prakash Devi, defendant in the suit. The suit for declaration was filed by Tarsem Lal to the effect that plaintiff is owner in possession of the suit land, as shown in the plaint. Earlier one Milkhi Ram was in actual peaceful possession of the suit land. After his death, plaintiff inherited the estate of Milkhi Ram on the basis of Will dated 25.2.1969 and thus came into possession of the land in question. Plaintiff is the real grandson of Milkhi Ram and, therefore, inherited the property of Milkhi Ram. Dass Ram son of Milkhi Ram died on 10.4.1971 and, thus, pre-deceased Milkhi Ram, who died on 25.4.1973. The possession of the ancestors of the plaintiff has been claimed to be peaceful, continuous and hostile for the last more than 50 years and even the plaintiff claimed the same to have ripened into adverse possession. Milkhi Ram was living with plaintiff and was joint in mess and residence. Plaintiff served Milkhi Ram till his death. Milkhi Ram on account of love and affection executed Will dated 25.2.1969 in favour of the plaintiff. Plaintiff claimed that the said Will was upheld by the Court in Civil Suit No.326 dated 22.7.1987 titled 'Tarsem Lal vs. Shankri' decided on 13.9.1989. The original Will was produced by the plaintiff in the said suit. Plea of adverse possession was taken by the plaintiff.

(2.) The suit was contested by the defendant on all customary pleas. It has been denied that the plaintiff is owner or in possession of the suit property. The suit property was claimed to be shamlat patti Prem Garh hasab rasab khewat and Labu Ram was proprietor in the village. Prem Garh had the right in shamlat patti hasab rasab khewat and as such he was in possession of khasra No. 414 measuring 1 kanal 2 marla as owner. There was no relationship between Dass Ram and Milkhi Ram. Dass Ram was never remains in possession of the land. Status of the plaintiff vis- -vis the land can never be that of owner in possession. Plaintiff was never in possession so the question of spending money on the suit property does not arise. The plaintiff cannot take plea of adverse possession as a weapon of offence against the true owner. Milkhi Ram was not living with the plaintiff nor he was joint in mess and residence. The decision given in previous suit is not binding on the defendant as she was not party to the said litigation.

(3.) After completion of pleadings, trial Court framed following issues:-