DALUMBI DEVI Vs. RAGHU RAJ

JUDGEMENT

(1.) Appellants are the legal representatives of original plaintiff Puran Chand, whereas respondent No. 1 is defendant No. 1 and respondents 2 to 5 are the legal representatives of original defendant No. 2, Smt. Chandoo. In this appeal under S. 100, C. P. C., the appellants have assailed the decree and judgment dated 8-1-1998 passed by the District Judge, Shimla, whereby their appeal was dismissed and the decree and judgment dated 1-9-1994 passed by the Sub-Judge, Ist Class (2), Shimla, was affirmed. The Sub-Judge had dismissed the suit of original plaintiff Puran Chand and allowed the counter claim of defendant No. 1 for possession of land in dispute measuring 12 bighas 3 biswas, comprised in Khasra Nos. 24, 26, 50, 57, 63 and 66, situated in Mauza Kalyana, Hadbast No. 16, Tehsil and District Shimla.

(2.) The suit filed by the original plaintiff Puran Chand was for declaration that he was in possession of the land in dispute as charge-holder and he could not be dispossessed therefrom until the amount spent by him on the improvement thereof and the maintenance of original defendant No. 2 Smt. Chandoo and her parents, was reimbursed to him. He had also prayed for decree for permanent prohibitory injunction restraining the defendants from interfering in his possession till the money spent by him on aforesaid two counts was paid to him. The basis of claim of Puran Chand was Power of Attorney Ext. PW3/A, dated 26-10-1974 and agreement dated Ext. PW3/B, dated 28-10-1974, which were allegedly executed by Smt. Chandoo in his favour. According to him, he has spent an amount of Rs. 1 lac on the maintenance of Smt. Chandoo and her parents and another sum of Rs. 50,000.00 on the improvement of the land in dispute, which was charge on it, as such, she could not have sold the land in dispute in favour of Raghu Raj for a sum of Rs. 70,000.00 vide registered sale deed dated 29-12-1988, which was done surreptitiously.

(3.) The suit was contested by the defendants by filing common written statement. As per them, by taking undue advantage of the illiteracy and simplicity of Smt. Chandoo, Puran Chand got executed Power of Attorney in his favour for the management of the suit property, but the execution of the agreement in respect of maintenance of Smt. Chandoo and her parents or for improvement of the land in dispute by Puran Chand, was denied. In the alternative, it was alleged that the said agreement being not registered was inadmissible in evidence and was of no avail. It was specifically denied that Puran Chand had in fact maintained Smt. Chandoo and her parents and made improvement over the land in dispute. As per them, possession of the land in dispute was handed over to defendant No. 1 by Smt. Chandoo at the time of its sale in December, 1988. In the alternative, if it was found that Puran Chand was in possession of the land in dispute, decree for possession was prayed by the defendants by filing counter- claim.