BALBIR SINGH DHAWAN Vs. ASHOK KUMAR

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment and decree dated 15.07.2010, passed by the learned Additional District Judge, Shimla in Civil Appeal No. 43 -R/13 of 2008.

(2.) MATERIAL facts necessary for adjudication of this Regular Second Appeal are that the appellant -plaintiff (hereinafter referred to as the plaintiff - for convenience sake) had instituted a suit for declaration against the defendants -respondents (hereinafter referred to as the defendants - for convenience sake). It is averred in the plaint that Sadhu, Dassu and Ramju were three brothers residing in village Gawas, Tehsil Chirgaon. They constituted joint Hindu family governed by Mitakshara law -. Dassu and Ramju were stated to be minors and their interests were looked after by Sadhu being eldest brother. Plaintiff was stated to be running a petty shop in his village since 1950. He used to maintain account books, such as Rokar -Cum -Cash book and Khata Bahi regularly in the course of his business. Shri Sadhu purchased articles on credit from the shop of the plaintiff from time to time and plaintiff has made entries to this effect in the Rokar as well as Khata regularly kept for the purpose on 12.03.1957. A sum of Rs.40.50/ - was outstanding against said Sadhu. Shri Sadhu also stated to have taken Rs.300/ - in cash and in lieu of such amount, he mortgaged with possession land known as Nichla -Shela -Pani - classified as Karali with the plaintiff. Plaintiff came into possession as usufructuary mortgagee in 1961. Plaintiff also took possession of land of other owners at place known as Upper -Wala -Shela -Pani. - The land comprised in Khasra No. 797 of Sadhu was in the vicinity of this land and other co -owners at Upper -Wala -Shela -Pani -. Thereafter, in order to have a compact chunk of land, plaintiff asked Sadhu to hand over the possession of the land in lieu of land which was in possession of the plaintiff at Nichla -Shela -Pani - as usufructuary mortagee. This offer of the plaintiff was accepted by the defendants and as a result thereof, the possession of the suit land was delivered to the plaintiff as mortgagee. The entry to this effect was also made in the revenue record. Plaintiff planted apple orchard over the suit land in 1962. Plaintiff instituted a civil suit No. 123/61 against Shri Sadhu Ram for recovery of Rs.324.75 paise. The same was decreed in favour of the plaintiff. He filed an execution petition No. 63/62. The entire Khata of Sadhu which included the suit land, was also attached in the attachment proceedings. The attachment proceedings were given effect in the revenue record vide Vaka No. 448 dated 18.07.1962 in pursuance of the order of Collector Mahasu, dated 03.07.1962. According to him, the land remained under the attachment. However, the entries, which continued in the Jamabandis for the year 1964 -65, 1968 -69 and 1973 -74, were discontinued in the subsequent Jamabandis. According to the plaintiff, since Sadhu, Dassu and Ramju were occupancy tenants in the suit land, the proprietary rights were conferred upon them later on, though the ownership of the land remained with the Government and prior to that with Mandir Devta Sahib. Shri Sadhu, Dassu and Ramju executed a sale deed No. 72/76 dated 25.3.1976 in favour of the defendants No. 1 and 2, namely, Shri Ashok Kumar and Shri Hari Bhushan. The mutation was attested in favour of defendants No. 1 and 2 on 27.02.1985. Thereafter, the settlement operation took place in the area and the suit land was assigned new Khasra Nos. 1024, 1034 and 1035. During settlement operation, the possession over Khasra Nos. 1034 and 1035 was recorded in the name of plaintiff and that of Khasra No. 1024 out of the suit land in the name of defendants No. 1 and 2. In the meantime, defendants No. 1 and 2 had instituted a Civil Suit No. No. 151/1 of 1995/98/1 of 1998. According to the plaintiff, he fell down in 1991 and could not impart proper instructions to his counsel to take the plea that he was in possession of the suit land on the basis of usufructuary mortgagee. The suit was decreed in favour of defendants No. 1 and 2 on 28.04.2000 (Ex. PW -3/X) and copy of the decree is Ex. PW -3/Y. Plaintiff filed an appeal before the 1st appellate Court. The same was dismissed by the 1st appellate Court. The Regular Second Appeal preferred in this Court was also dismissed by this Court. According to the plaintiff, after he suffered a decree vide Ex. PW -3/Y, he looked into the old records and came in possession of the documents prepared in 1950 to 1957. In these circumstances, he filed a suit with the following prayers: (a) A decree for declaration that the plaintiff is mortgagee with possession (Usufructuary Mortgagee) over the suit land bearing Khasra No. Old 797, new Khasra No. 1034, 1035 and 2024 known as Upperwala -Shelapani - comprised in Khata No. 71, Khatauni No. 176 and 177 as shown in the Misal Haqiat for the year 1986 -87 in revenue chak Gawas, Tehsil Chirgaon, District Shimla, H.P. and the entry of possession with respect of Khasra No. new 1024 in the name of defendants No. 1 and 2 is illegal and contrary to the spot position and judgment/decree No. 151 -1/95/58 -1 of 98 dated 28.4.2000 Ashok Kumar etc. Vs. Balbir etc. has become in -effective and is not binding upon the plaintiff. (b) Further for declaration that defendants No. 1 and 2 have lost the right of redemption and the plaintiff has every right to remain in possession, as usufructuary mortagee or in -alternative has become owners in possession of the suit land. ( c) A decree for permanent prohibitory injunction restraining the defendants No. 1 and 2 from dispossessing/ejecting the plaintiff from the suit land on the basis of judgment and decree No. 151/1 of 1995/58/1 of 1998 dated 28.04.2000 in any proceedings including execution and also from making interference in any manner over the aforesaid suit land, and execution proceedings before Ld. Sub Judge (2) Rohru be stayed. -

(3.) THE notice was issued to the parties on 03.11.2010. Mr. Ajay Kumar, Advocate has put in appearance on behalf of contesting respondents No. 1 and 2.