SARWAN DASS Vs. SALAM JEET

JUDGEMENT

(1.) This second appeal arises out of the judgment and decree dated 9-8-1994 passed by the learned District Judge (Forests), Shimla in Civil Appeal No. 81/S/13 of 1992/89 whereby the judgment and decree dated 29-12-1988 passed by the learned Sub-Judge, Rohru in CS No. 132-1 of 1985 has been affirmed.

(2.) The facts leading to the presentation of this appeal are that the appellant/plaintiff (hereafter referred to as 'the plaintiff') instituted the suit against Uchhi (since deceased) and represented by his LRs - respondents Nos. 2, 3 and 4 and respondent/defendants Nos. 5 and 6 and one Bhag Singh earlier respondent No. 7 in the appeal and whose name has since been deleted (hereafter referred to as 'the defendants') for permanent prohibitory injunction restraining the defendants from interfering in any manner with the possession of the plaintiff over the land measuring 11-18 bighas comprising Khasra Nos. 14 and 26, Khata Khatauni No. 148 min/224, situate in Chuck Dali, Tehsil Chirgaon, District Shimla. Case of the plaintiff, as made out in the plaint, is that the suit land is in possession of the plaintiff for the last more than 25 years openly, peacefully and adversely. Deceased Uchhi has sworn in an affidavit on 1-1-1979 admitting possession of the plaintiff over land Khasra No. 14 for more than 16/17 years and the entries in the records showing Uchhi as the owner of the land are incorrect. On 7-4-1985 said Uchhi transferred land Khasra No. 26 in favour of defendant Keshav Ram by a sale deed which was a result of the connivance between Uchhi and defendant Keshav Ram whereas Uchhi has no right to transfer the said land being out of possession. Therefore, the said sale deed is illegal and void. After the execution and registration of the said sale deed, defendants Keshav Ram, Des Raj and Bhag Singh made their intentions clear to take forcible possession of the suit land and are adamant to enter upon the suit land on the basis of the said sale deed. Hence, the suit.

(3.) Defendant Uchhi in a separate written statement raised the preliminary objections that the plaintiff has no locus standi or cause of action to institute the suit, that the revenue entries are illegal and contrary to the factual position and the suit is barred by limitation. On merits, it has been averred that the plaintiff is neither owner nor in possession of the suit land and the execution of the affidavit dated 1-1-1979 has been denied and it has been claimed that the plaintiff had tried to take undue advantage of old age and illiteracy of defendant Uchhi. The sale of land Khasra No. 26 has been claimed to be accordance with law and that by virtue of the sale, defendants Keshav Ram and Des Raj are the owners in possession of the suit land.