BAKHTAWAR SINGH Vs. JAGDISH

JUDGEMENT

(1.) This appeal by the defendants is directed against the judgement and decree dated 22.12.2001 passed by the learned District Judge, Una whereby he dismissed the appeal of the defendants and affirmed the judgement and decree dated 15.9.1997 passed by the learned Sub Judge 1st Class, Court No.2, Una decreeing the suit of the plaintiffs.

(2.) Briefly stated the facts of the case are that the plaintiffs filed a simpliciter suit for injunction claiming that they have become owners of the suit land under Section 104 of the H.P.Tenancy and Land Reforms Act and that the defendants have no right, title or interest over the same. The defendants contested the suit only qua one of the khasra numbers out of the entire suit land. There case was that khasra No. 620 (old) which corresponding to Khasra No.1936 (new) was in possession of defendant No.1 Bakhtawar Singh since he after retirement from the army had applied for resumption of the land and thereafter the Land Reforms Officer vide order dated 23.1.1992 had allowed the resumption of land including Khasra No. 620 in favour of Bakhtawar Singh, which order was again reaffirmed after remand on 29.8.1992 Ext.D- 6. The order of the Collector was affirmed by the Divisional Commissioner vide order dated 9.6.1994. In replication the stand of the plaintiffs was that Sukhan Devi had wrongly and illegally executed a gift deed in favour of Bakhtawar Singh and his brothers in the year 1972 to get the benefit of the army service of Bakhtawar Singh. However, in the suit no prayer was made that the gift deed was bad in law. In fact, no prayer was made that the entries showing Bakhtawar Singh to be owner on the basis of the gift are not correct.

(3.) Both the Courts below held that since, admittedly, the plaintiffs were in possession of the suit land at the time when gift deed was executed the possession thereof was not delivered in favour of the donees and therefore, the gift had not been completed. This appeal by the defendants has been filed against the concurrent findings of both the Courts below on this aspect of the matter and was admitted on the following questions of law:-