KANKU Vs. KALIA RAM

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 31.3.2011 rendered by the learned Additional District Judge, Mandi in Civil Appeal No. 74 of 2007. Material facts necessary for the adjudication of this Regular Second Appeal are that appellant-plaintiff and the predecessor-in-interest of proforma respondents Sh. Saunu (hereinafter referred to as 'plaintiffs' for convenience sake) filed a suit for declaration with consequential relief of permanent prohibitory injunction. According to the facts narrated in the plaint, the land comprised in khewat No. 48, Khatauni Nos. 64, 65, 66 and 67 bearing khasra Nos. 98, 109, 110, 111, 113, 115, 116, 49, 51, 106, 107, 117, 100, 105, 108, 112, 114 and 50 kitas 18 measuring 30-12-11 bighas situated in village Dolgi, Illaqua Balh (hereinafter referred to as 'suit land-A') had been recorded in the ownership of the parties to the suit but in possession of the plaintiffs and the land comprised-in Khewat No. 57, khatauni Nos. 135, 136, 137, 138, 139, bearing Khasra Nos. 972, 837, 843, 957, 959, 966, 967, 968, 971, 974, 989, 836, 837/1, 842, 956, 970, 973, 976, 977, 978, 988, 990, 991, 835, 838, 842/1, 954, 979, 980, 958, 981, 987, 992, 841, 974, 975, 982 and 983 kitas 38 measuring 29-15-15 bighas situated in village Balt, Illaqua Balh, Tehsil Sadar, District Mandi (hereinafter referred to as 'suit land-B') had been recorded in the joint possession of the parties to suit as occupancy tenants. It is further stated that one Kahnu had three sons, namely Bardu, Bhola and Chitru. Bardu was predecessor-in-interest of the plaintiffs whereas Bhola was predecessor-in-interest of defendant No. 1 and Chitru was predecessor-in-interest of defendant Nos. 2 to 4, namely, Ramu, Saain and Sohanu (hereinafter referred to as 'defendants' for convenience sake). Bardu, Bhola and Chitru were possessing land in villages Dolgi and Balt. Bardu, predecessor-in-interest of the plaintiffs started living in village Dolgi. Bhola and Chitru started residing in village Balt. They have partitioned their property situated in villages Dolgi and Balt by family partition more than 60 years back. They have constructed their houses and started cultivating their landed property separately. Bardu relinquished his right, title and interest in the suit land-B in favour of Bhola and Chitru. Bhola and Chitru had relinquished their right, title and interest in the suit land-A in favour of Bardu. The family partition has taken place on 19.5.1957 vide Ex. P-1. The defendants have also got the revenue entries corrected in their favour qua the suit land-B but their names in the suit land-A were still in the revenue record, which entries according to the plaintiffs are incorrect and illegal. They have also pleaded their possession over the suit land-A as open, continuous, uninterrupted and hostile to the knowledge of the defendants for the last 60 years. They have never permitted the defendants to use and enjoy the fruits of the suit land-A. The defendants taking advantage of the wrong revenue entries in their favour were trying to dispossess them from the suit land-A. In the alternative, it was also prayed by the plaintiff that if the Court comes to the conclusion that the defendants were having interest in the suit land-A in that eventuality, they be declared owner to the extent of 1/3rd share in the suit land-B. It is in these circumstances that the suit was filed by the plaintiffs.

(2.) Suit was contested by the defendants. The description of the suit land has not been denied by them. However, it is denied that the suit land-A was in possession of the plaintiffs. The description of suit land-B has also not been disputed by the defendants. It has been denied that the suit land-B has been shown in joint possession of the parties as occupancy tenants. It is stated that defendant No. 1 is owner in possession of the suit land-B to the extent of 1/3rd share whereas the other parties are joint tenants. It is also stated that the suit land-B though was in their possession but they were in possession as co-sharers/co-tenants. It is not denied that Bardu, Bhola and Chitru were sons of Kahnu and Bardu was predecessor-in-interest of Kahnu. It is denied that Bardu started living in village Dolgi and Bhola and Chitru were residing in village Balt. The partition has been denied. According to them, there had been no partition in between the parties or their predecessor-in-interest. According to them, the entire land is joint in both the Muhals. It is denied that Bardu had relinquished his right, title and interest in the suit land-B in favour of Bhola and Chitru and Bhola and Chitru had relinquished their right, title and interest in favour of Bardu in the suit land-A. It is denied that the fact of partition was ever admitted by them. The plea with regard to adverse possession was also denied. It was admitted that the plaintiffs were having 1/3rd share in the suit land-B.

(3.) Replication was filed on behalf of the plaintiffs. Thereafter, the learned Civil Judge (Junior Division) dismissed the suit on 31.7.1999. Plaintiffs preferred an appeal and the first appellate Court (Fast Track Court), Mandi allowed the same on 6.11.2004. He also framed issue No. 4-A and remanded the case to the trial Court. Thus, issues were firstly framed on 12.3.1996 by the trial Court and thereafter by the first appellate Court on 6.11.2004. The trial Court partly decreed the suit of the plaintiffs. Plaintiffs, namely, Kanhu and Hirda preferred an appeal before the learned Additional District Judge, Mandi. The legal representatives of Saunu, who was the original plaintiff, were added as proforma respondents. Learned first appellate Court dismissed the appeal on 31.3.2011. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: