SUSHMA MEHTA Vs. MEHAR SINGH AND OTHERS

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 20.5.2000 rendered by the learned Additional District Judge, Shimla in Civil Appeal No.43-S/13 of 1996.

(2.) "Key facts" necessary for the adjudication of this Regular Second Appeal are that appellant-plaintiff Sushma Mehta and proforma respondent Sushila Kumari filed suit for possession of land bearing Khasra No. 172/1, measuring 5-6-0 bighas situated in Chak Sainji, Tehsil Rohru, District Shimla (hereinafter referred as the suit land) against Sh. Raghubir Singh, predecessor-in-interest of the defendants (hereinafter referred to as the 'defendant' for convenience sake). According to the facts, one Raj Kumar Rajinder Singh was owner of land bearing Khasra No. 172/1 measuring 55-14-0 bighas situated in Chak Sainji, Tehsil Jubbal, District Shimla. He sold this land to the plaintiff on 20.4.1965 by way of oral sale and also delivered the possession thereof. The mutation No. 5188 was also attested in favour of the plaintiff. The predecessor-in-interest of the defendants Raghubir Singh, however, encroached upon the portion thereof in the month of Dec., 1965. Sushila Kumari filed an application for demarcation of the suit land before the Tehsildar, Rohru. The demarcation was carried out by Girdawar Halqua on the spot. Defendant was found in possession of the land measuring 5-6-0 bighas. The tatima was prepared by the Girdawar Halqua. Plaintiff requested the predecessor-in-interest of the defendants to hand over the possession of the suit land, but of no avail. Legal notice was also served upon him. According to the plaintiff, predecessor-in-interest of the defendants has encroached upon the land without any right, title and interest and as such they are entitled to the decree of possession and also for recovery of Rs. 100.00 by way of damages.

(3.) Suit was contested by the predecessor-in-interest of the defendants. According to him, he has raised an apple orchard 3-4 years back. He has assailed the legality and validity of the mutation No.5188 dated 20.4.1965 attested in the name of plaintiff. According to him, the same was in violation of section 68 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter referred to as the "Act" for brevity sake). The sale deed being unregistered is also stated to be null and void and not binding on him. In the alternative, he has also set up his adverse possession. It was also stated that on 26.1.1955, the suit land has vested in the State Government. Hence, on the day of sale, i.e. 20.4.1965, the mutation No. 5188 attested in favour of plaintiff was illegal and would not confer the right, title and interest on the plaintiffs qua the suit land. According to him, the transaction was also violative of section 27 of the Act and section 54 of the Transfer of Property Act. He was found to be in possession of the suit land as per demarcation report. Trial court framed the issues on 23.3.1967 and 25.11.1975. Trial court dismissed the suit on 2.4.1996. However, issues No. 2 and 7 were held in favour of defendant. One of the plaintiffs, Sushma Mehta filed an appeal against the judgment and decree dated 2.4.1996 passed by the learned Sub Judge, Court No.1, Rohru. Sushila Kumari, who was 2nd plaintiff, was arrayed as proforma respondent. Learned Additional District Judge partly allowed the appeal. The finding recorded by the trial court on issue No.2 that the defendant has acquired the title on the suit land by way of adverse possession was set aside. The impugned judgment and decree was modified to this extent. Hence, this Regular Second Appeal. It was admitted on the following substantial questions of law on 10.4.2002: