JHILO DEVI Vs. DHANI RAM

JUDGEMENT

(1.) Feeling aggrieved by the judgment and decree dated 31.3.1999 passed by the learned Additional District Judge -II, Kangra at Dharamshala, in Civil Appeal No. 61/D/XIII/97, dismissing the appeal of the appellants/defendants (hereinafter referred to as the defendants) against the judgment and decree dated 8.5.1997 passed by the learned Senior Sub -Judge, Kangra, decreeing the suit of the plaintiff/respondent (hereafter referred to as the plaintiff), the defendants have preferred the present appeal.

(2.) Brief facts leading to the presentation of this appeal are that the plaintiff instituted a suit for declaration that he is the owner in possession as a co -sharer to the extent of l/4th share, comprising Khata No. 73 Khatauni Nos. 135 to 137, Kitas 18, measuring 0 -74 -70 hectares, situated in Mohal Balla, Mauja Tadnuigal, Tehsil Dharamshala, District Kangra (hereafter referred to as the Suit Land) and the name of original defendant Damodar, since deceased, (now being represented by his legal representatives) recorded as owner in possession in the revenue records is against the legal and factual position and is liable to be deleted and for permanent injunction restraining the defendants from proclaiming to be the owners in possession and from interfering in the suit land. Briefly stated the case of the plaintiff, as made out in the plaint, is that in the revenue records the suit land is entered in the name of Makholi, Dhani Ram and Chando Ram sons of Relu to the extent of 1/2 share and Damodar (deceased defendant) and Sripat sons of chaudhury to the extent of 1/2 share. However, share of said Damodar to the extent of 4 kanals 17 marlas (i.e. l/4th share) in the suit land was attached and sold in execution of a decree in Execution Petition No. 160/1970 titled Chingo Ram v. Damodar Ram. The aid share of Damodar was purchased in auction by the plaintiff vide sale certificate dated 20.7.1972. At a later stage in execution of warrant of possession the plaintiff was put in possession of the suit land as per the copy of Rapt Roznamcha enclosed with the plaint. The plaintiff thereafter claims to be the owner in possession as a co -sharer in the suit land. However, the name of Damodar through over -sight or clerical error continued to be recorded in the revenue papers, though he ceased to be the owner because of the sale of his share in execution of the decree. The plaintiff asked Damodar several times to get his name removed from the revenue records but of no avail. Hence the present suit.

(3.) The original defendant contested the suit. In his written statement he raised preliminary objections that the suit is bad for non -joinder of necessary party, that the plaintiff has neither locus standi nor cause of action to sue, that the plaintiff is estopped by his act and conduct to file the present suit and the defendant had become owner of the suit land by virtue of adverse possession since 13.10.1972. On merits it was averred that the area falling to the share of the defendant has not been correctly stated in the plaint which requires amendment and that even after the alleged delivery of possession to the plaintiff, the defendant continued in possession and did not permit the plaintiff to occupy the suit land. He had raised loan over his share in the suit land by mortgaging the same in his capacity as owner and the plaintiff has never come to possess the suit land. It is further claimed that because of the hostile, notorious, open possession of the defendants over the suit land since October, 1972, to the knowledge of the plaintiff, the plaintiff is now estopped from filing the present suit. The defendant had further claimed that the plaintiff tried to get partition and sanctioned mutation in his favour, but his attempt was foiled and if he had any title to the suit property that too foiled because of the hostile, nortorious, open possession of the defendant over the suit land since October, 1972.