RAJINDER PRASHAD Vs. CHUNI LAL

JUDGEMENT

(1.) APPELLANTS -plaintiffs in the trial Court are in second appeal, as they have assailed the legality and validity of the judgment and decree dated 19.01.2002 passed by learned Additional District Judge (II), Kangra at Dharamshala in Civil Appeal No. 10 -P/99, whereby the judgment and decree passed by learned Sub Judge, 1st Class (II), Palampur, District Kangra in Civil Suit No. 139 of 1993 has been affirmed and the appeal dismissed.

(2.) THE challenge to the impugned judgment and decree is on the grounds inter -alia that both Courts below have not appreciated the evidence available on record in its right perspective and to the contrary recorded the findings on surmises and conjectures. The dismissal of the suit partly is contrary to the given facts and circumstances and also evidence available on record. No presumption of truth to the entries in the revenue records showing the respondent (defendant in the trial Court) being in possession of part of the suit land is stated to be attached in the given facts and circumstances and rather such presumption is rebuttable. The respondent -defendant allegedly managed the entries in his name during the settlement operation, which cannot be made basis to hold him in possession of the suit land. It is also pointed out that Courts below have failed to appreciate the real controversy in the suit, as the same having been filed for the decree of permanent prohibitory injunction, no declaration that the respondent -defendant is in possession thereof in the capacity of tenant could have been granted in the absence of other recorded co -sharers. The suit, according to the plaintiffs, should have been decreed for the relief of permanent prohibitory injunction as a whole and not in part.

(3.) WHETHER both the courts below have committed grave procedural illegality in declaring the respondent to be tenant qua the part of the suit land in the absence of other co -sharers who having not been impleaded to the suit effecting their rights qua the suit property?