SHRI ROOP SINGH Vs. SHRI WATTAN SINGH

JUDGEMENT

(1.) The present second appeal at the instance of the plaintiff against the judgment and decree dated 28.9.1996 of the learned Additional District Judge, Shimla, affirming the judgment and decree dated 31.12.1991 of the learned Sub Judge 1st Class (IV), Shimla, stands admitted for hearing on the following substantial questions of law :

(2.) Briefly, the facts of the case leading to the present appeal may be thus stated. The plaintiff filed a suit for declaration and injunction claiming himself to be the owner and in possession of the land located in village Rajhana, Pargana Jajhot and village Pateog, Pargana Jajhot of Tehsil and District Shimla, specifically detailed in the plaint and hereinafter referred to as the land in dispute. It was pleaded that Moti Ram, father of the plaintiff was the owner of the land in dispute. The plaintiff and his father constituted a joint Hindu Family. The land in dispute was ancestral in the hands of the deceased Moti Ram, therefore, he could not have alienated the same in any manner. It has come to the notice of the plaintiff that the deceased on 17.8.1971 had transferred the land in dispute in favour of the defendant for a consideration of Rs. 10,000.00 without any legal necessity. The sale was procured by the defendant by misrepresentation and fraud. It was also pleaded that the deceased Moti Ram at the time of sale was not possessing a sound mind and was not capable of understanding. The possession of the land inspite of the sale was never handed over to the defendant. In the alternative the plaintiff asserted his open, continuous and uninterrupted adverse possession over the land in dispute and that he has acquired title thereto.

(3.) The defendant while resisting the suit claimed to have validly purchased the land in dispute from the deceased Moti Ram. It was pleaded that Moti Ram possessed a sound disposing mind. Ancestral nature of the land in dispute was denied. The defendant also denied that the plaintiff and his deceased father constituted a joint Hindu Family. It was asserted that possession of the land in dispute was delivered to the defendant and since after the sale he is coming in possession thereof as owner. Objection as to the suit being barred by time was also raised.