JIWAN RAM AND ANOTHER Vs. BAWA HARI DASS

JUDGEMENT

(1.) THIS is the defendants ' appeal from the judgment and decree of a learned Subordinate Judge 1st Class, Kandaghat, Simla, passing a decree in favour of Bawa Hari Dass Beragi plaintiff for a declaration that he is the owner and in possession of some part of the land in dispute and a decree for possession as owner for the remaining part of the land in dispute.

(2.) THE plaintiff's case as pleaded in the plaint is that land measuring 284 bhighas 11 biswas in village Sobru, Tehsil Kandaghat belonged to Tilak Ram and was so shown in the Jamabandi for the Sam -bat 2006 -07. Shri Moshu son of Shri Tilak Ram, at the instance of the plaintiff, instituted a pre -emption suit in respect of this land which was financed by the plaintiff. This happened sometime in 1952 -53. Apparently this land had been sold by Tilak Ram, though it is rot expressly mentioned in the plaint. Moshu Rams's suit was apparently decreed and after the preemption decree the plaintiff purchased the said land from Moshu Ram, Tilak Ram his father also joining the sale transaction. Apparently Tilak Ram was made to join in the sale because his name still appeared in the Jamabandi as owner, though there was no title left in him after the decree was passed in favour of Moshu Ram. This sale, it appears, was secured in the name of the defendants Jiwan Ram son of Dbaulu Ram and Surtia a son of Shri Heeru, who were the plaintiff's senators and in whom the plaintiff had full faith and confidence as per registered sale -deed dated 2nd February, 1953. The plaintiff being a yogi did not want to purchase the land formally in his own name. The plaintiff, it is averred in the plaint, carried on the negotiations with Moshu Ram and in fact paid a sum of Rs. 2,000/ - to him through one Mast Ram. The defendants were men of no substance and indeed had no means to purchase the land in dispute. It seems that on a part of this land, the plaintiff had already built a Kutiya costing about 1 1/2 lacs of rupees which consisted of contributions to the plaintiff by his disciples during the last about 50 years. The plaintiff in addition constructed houses for the residence of Gorkhia his tenant and also for Jiwan Ram defendant who was the plaintiff's disciple. The land underneath the Kutiya and the houses, it is expressly averred, were already in possession with the plaintiff before the aforesaid sale. The possession of the remaining land purchased from Shri Moshu Ram was, however, delivered to the plaintiff under the sale deed dated 2nd February, 1953. Since then, according to the plaintiff's plea, he continued in possession thereof and also of the buildings thereon. Certain portion of the land was, however, in the plaintiff's possession through the defendants who as disciples of the plaintiff, were allowed to remain in actual physical possession thereof. They were, as disciples, to supply wood and grass etc., to the plaintiff's Kutiya, to render other services to the Kutiya and also to keep the premises clean. The remaining land continued in possession of the plaintiff either actually or constructively through his tenant Gorkhia. It is also averred in the plaint that there was some dispute with the Forest Department in the matter of marking of the trees standing on the land in dispute and it was the plaintiff who was approached as owner of the trees by the Forest Department, At the plaintiffs instance, the marking was changed and ultimately when the trees were sold, out of Rs. 9,558/ -, a sum of Rs. 7,000/ - was paid to the plaintiff through the defendants. This, according to the plaintiff, happened about three years prior to the institution of the suit. Later, when the balance of Rs. 2,558/ - was received by the defendants, they became dishonest and did not hand over this money to the plaintiff. It was from this point of time that the defendants also stopped rendering service to the Kutiya and indeed became disloyal to the plaintiff. Later, the defendants also sold some trees without reference to the plaintiff. Thereupon, the plaintiff served a notice to the defendants on 18th January, 1961. On receipt of a reply to this notice from Jiwan Ram, who purported to act on behalf of himself and on behalf of his nephew Surtia Ram defendant, the matter was taken to the Panchayat Baoli for decision, of which Panchayat the defendant Jiwan Ram himself happens to be the Sarpanch Feeling that the Panchayat would decide against Jiwan Ram, because the truth was known to everybody, he refrained from attending the meeting convened by the Panchayat. The Panchayat, however, gave its verdict against the defendants. Jiwan Ram then committed some irregularities and illegalities in the conduct of those proceedings, with the result that the matter was reported to the Director, Panchayats. The matter was thereafter referred to arbitration of seven persons including the Sub -Divisional Officer, Kandaghat by means of an agreement dated 10th September 1961. This agreement was signed by Jiwan Ram for himself and on behalf of his nephew Surtia Ram defendant. Later, taking advantage of the absence of Surtia Ram's signatures, the defendants applied to the Court under section 33 of the Indian Arbitration Act for cancellation of the said agreement. This agreement was for this technical defect set aside by the Court on 30th January, 1962. It is broadly on these allegations that the present suit was instituted on 10th April, 1962.

(3.) THE replication filed by the plaintiff reiterated the plaintiff's case in the plaint. The pleadings of the parties gave rise to the following main issues: