ROSHAN LAL Vs. JAGAT PAL

JUDGEMENT

(1.) By way of this appeal, the appellants assail the judgment and decree passed by the Court of learned Additional District Judge, Ghumarwin, District Bilaspur, H.P. camp at Bilaspur, in Civil Appeal No. 35/13 of 2009, titled as Jagat Pal vs. Roshan Lal and others, dtd. 28/2/2011, in terms whereof, the learned Appellate Court decreed the suit of the plaintiffs, after setting aside the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Bilaspur, District Bilaspur, H.P. in Civil Suit No. 14/1 of 1996, titled as Jagat Pal and another Vs. Roshan Lal and others, dtd. 29/6/2009, whereby the suit for possession filed by the plaintiffs was dismissed.

(2.) Briefs facts necessary for the adjudication of the present appeal are that the contesting respondents/plaintiffs (hereinafter to be referred as the'plaintiffs' for convenience sake) filed a suit against the present appellants/contesting defendants for possession of two rooms in a house situated on suit land comprised in Khewat No. 31/89, Khatoni No. 90/109 min old Khasra No. 39/519 and new Khasra Nos. 845, 846, Kita 2 measuring 207-25 square desi meters, situated in Up Muhal Lakhanpur, Tehsil Sadar, District Bilaspur, H.P. on the ground that Bardu Ram was the owner in possession of the suit land and after him, the plaintiffs were in possession of the house situated on the suit land except two rooms. These two rooms were occupied by the defendants. The possession of the two rooms was given to the contesting defendants with the permission of Bardu Ram, who happened to be the grand-father of the plaintiffs and father of contesting defendant No. 1 and father-in-law of contesting defendant No. 2. As per the plaintiffs, Bardu Ram was maltreated by contesting defendants after their marriage. They never looked after Bardu Ram till his death, yet Bardu Ram took mercy upon them and as they were not having any place to live, Bardu Ram gave two rooms in the house to the contesting defendants for a period of two years with the condition that in the meanwhile, contesting defendants would construct their own house and vacate the said premises. Bardu Ram executed a Will of the said premises as well as other land/suit land in favour of the plaintiffs and after his death, mutation of the estate of Bardu Ram was attested in favour of the plaintiffs on 22/9/1995, on the basis of this Will. Bardu Ram died on 21/8/1995 and his last rites were performed by the father of the plaintiffs and the contesting defendants did not even mourn the death of Bardu Ram nor they incurred any expenditure for his last rites. Further as per the plaintiffs, they were having a large family and in lieu thereof, defendant No. 1 was called upon to vacate the premises but he refused to do so despite notice having been served upon him. On 31/12/1995, in the presence of local persons, plaintiffs requested the contesting defendants to hand over possession of the said two rooms under their occupation but the defendants refused to do so, hence, the suit.

(3.) The suit was resisted by the contesting defendants inter alia on the ground that defendant No. 1 was the owner in possession of the property in dispute to the extent of share being the legal heir/son of Bardu Ram. As per defendant No. 1, plaintiffs had no right over the half portion of the suit land which was inherited by defendant No. 1 and the same included the suit premises. As per the defendants, two rooms were given by Bardu Ram to defendant No. 1 about two decades ago with the condition that defendant No. 1 shall be residing therein with his family. It was further the case of the contesting defendants that deceased Bardu parted with possession of the suit premises in favour of defendant No. 1 with the clear intention that defendant No. 1 was to be owner in possession thereof and other family members of the Bardu Ram were not to interfere with the enjoyment rights of defendant No. 1 in the said two rooms. Therefore, according to the contesting defendants, as they were occupying the rooms in their capacity as owners thereof, the suit was not maintainable. In the written statement, it was denied that any Will was executed by Bardu Ram in favour of the plaintiffs as alleged. It was further stated in the written statement that in case ownership of defendant No. 1 was not proved, then his title stood matured by way of adverse possession. As per defendant No. 1, defendants duly participated in the last rites of his father and no notice as alleged by the plaintiffs was ever issued to the defendants for the purpose of vacation of the suit premises.