KRISHANA DEVI Vs. SUBHADRA DEVI

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree dated 15th September, 2000 passed by learned District Judge (Forest), Shimla, District Shimla in Civil Appeal No. 177 -S/13 of 1992/90 whereby the first appeal of the appellants herein against the judgment and decree of the learned Sub Judge, 1st Class, Theog, District Shimla in Civil Suit No. 212/1 of 1986 was dismissed.

(2.) Briefly stated the facts of the case leading to filing of the appeal are that Smt. Subhadra Devi plaintiff -respondent herein filed a suit for declaration with consequential relief of possession of the land comprising Khasra Nos. 18, 27, 33, 5, Kita 4 measuring 8 -9 bighas situated in Mauza Bhagra doem, Pargana Chhabishi Tehsil Kothkhai, District Shimla, against the appellants - defendants. The plaintiff and Smt. Krishna Devi defendant No.2 are the daughters of Hari Singh & Matha whereas Nanak Chand defendant No.1 is the husband of defendant No.2. The case of the plaintiff was that her father made gift of the land in dispute in her favour on 20.7.1993. The plaintiff stated that during the period of Kharif 1981, the defendants got revenue entries qua the possession of the land in dispute entered in their favour without any right title and interest by misleading and suppressing the true facts. On the basis of the said revenue entries in the revenue record the defendants forcibly, illegally and without any reason took the possession of the land in dispute on 20.7.1983 without the consent of the plaintiff. The plaintiff then contended that possession of the defendants over the land in dispute was illegal and erroneous. On these premises, the suit for declaration with consequential relief of possession of the land in dispute came to be filed.

(3.) The defendants in their written statement resisted and contested the suit raising preliminary objections, inter alia, that the suit was not maintainable for declaration in the form in which it was laid and the gift was not accompanied by delivery of possession of the land in dispute in favour of the plaintiff, therefore, the gift was void and not enforceable. On merits, the defendants pleaded that Hari Singh made oral gift of the land in dispute in their favour about 15 -16 years out of love and affection prior to filing of the written statement. Defendant No.1 was adopted as "Ghar Jawain" after his marriage with defendant No.2 as Hari Singh had no male issue. The defendants then contended that they are coming in possession of the land in dispute since delivery of possession but their possession was recorded in the revenue record for the first time in the year 1981. They stated that Hari Singh filed an application before the revenue authority for the correction of revenue entries entered in their name which came to be dismissed upto the level of the Divisional Commissioner. The defendants also claimed by way of additional pleas that in case they were not found as owner in possession of the land in dispute on the basis of the oral gift then they have become owners by virtue of adverse possession as their possession over the land in dispute was peaceful, open without any interruption and hostile to the right, title and interest of Hari Singh. The defendants also alleged that the suit was not properly valued for the purposes of Court fees and jurisdiction, hence the same be dismissed.