KANSI SINGH Vs. DESA SINGH

JUDGEMENT

(1.) This is plaintiff's second appeal whose suit for declaration has been dismissed by both the Courts below.

(2.) The plaintiff brought the suit for the grant of a declaration to the effect that he was in possession of the suit land as a tenant-at-will under Gurdev Singh, defendant No. 2. The entries in the revenue record in favour of defendant No. 1 Desa Singh as ghair maurusi tenant on the said land are wrong and against facts and were liable to be cancelled. As a consequential relief he also sought a decree for the grant of the permanent injunction restraining the defendants from interfering with his possession over the suit land. Defendant No. 2, Gurdev Singh, was proceeded ex parte in the trial Court. The suit was contested by Desa Singh, defendant No. 1 only, who raised many preliminary objections. On merits, it was pleaded by him that defendant No. 2 was not only the owner of the land, in dispute, but other members of his family were also the owners thereof. The plaintiff never cultivated the suit land as a tenant under defendant No. 2 nor he was in actual physical possession thereof. If the plaintiff had got his name entered in the revenue papers, then, the said entry was wrong. The question of dispossession of the plaintiff did not arise as he was not in possession of the suit land.

(3.) The main controversy between the parties before the trial Court was whether the plaintiff was in possession of the suit land as a tenant, and if so, since when. The trial Court after discussing the entire evidence came to the conclusion that the plaintiff had failed to prove that he was in possession of the suit land. A reference was made by the trial Court to the statement of P.W.2 Karam Chand, Patwari, who had categorically stated that Desa Singh, defendant, was in cultivating possession of the suit land. In view of the said finding, the plaintiff's suit was dismissed. In appeal, the learned Additional District Judge affirmed the said finding of the trial Court and, thus, maintained the decree dismissing the plaintiff's suit. The learned Additional District Judge recorded a firm finding that it was clear that Desa Singh, defendant No. 1, was in physical cultivatory possession of the suit land. Even the plaintiff's own witness PW2 Patwari, has admitted the possession of Desa Singh, defendant No. 1, on the suit land. Therefore, it was held that defendant No. 1 was in actual physical cultivating possession of the suit land at the spot as tenant-at-will under defendant No. 2, Gurdev Singh.