BALAK RAM Vs. KEDAR NATH

JUDGEMENT

(1.) -This second appeal filed by the defendant under section 41 of the Punjab Courts Act, 1913 is against the judgment and decree passed on 23rd June, 1981 by the District Judge, Hamirpur and Una Districts at Hamirpur dismissing his appeal and thereby affirming the judgment and decree passed on 23rd June, 1981 by the Senior Sub -Judge, Hamirpur decreeing the suit of the plaintiff Kedar Nath. During the pendency of the appeal, plaintiff Kedar Nath died and is represented by his legal representative Joginder Paul.

(2.) The facts, in brief, are that a suit for possession of 5 Kanals 2 Marlas of land comprised in Khasra Nos. 159, 160, 163 situate in Tika Jahu -Khurd, Tikka Mewa, Tehsil and District Hamirpur, was filed by the plaintiff against defendants Balak Ram and Milkhi Ram on the basis of his title. It was alleged by the plaintiff that the suit land is owned by him. The defendants, who were in unauthorised occupation of the suit property had no right, title or interest therein. On the basis of his title, he was entitled to get a decree for possession since despite requests, which lastly was made in June, 1973, the defendants had failed to deliver possession to him. This suit was instituted on 3rd January, 1975. Defendants contested the same and alleged that they were in possession of the suit property since the time of their predecessors -in -interest in the capacity as tenants at -will on payment of rent. Plaintiff had not come to the Court with clean hands and had twisted the facts. In view of the relationship of landlord and tenant, the suit for possession was neither competent, nor maintainable in civil court. Plaintiff in the replication for the first time came up with a new plea, which had not been taken earlier in the plaint. It was alleged that S/Shri Bidar, Chuglu and Ranjhu owned certain property, part of it was under mortgage with Hari Dass and others. The remaining land was under tenancy with the predecessors -in -interest of the defendants. In the year 1959, the defendants purchased 2/3rd undivided share of Chuglu and Ranjhu and undertook to get the mortgage redeemed. The third co sharer Shri Bidar got the mortgage redeemed and sold his undivided l/3rd share in plaintiffs favour. Thus, the plaintiff became owner to the extent of 1/3rd share. The defendants on purchase of 2/3rd share had ceased to be the tenants. During the consolidation of holding operations, the suit land was allotted to him by separating his Khatta. Name of the defendants was incorporated in revenue records in the capacity as tenants under him. On the basis of these pleadings, parties went to trial on the following issues : "1. Whether this Court has jurisdiction to try this suit ? OPD.

(2.) Whether the defendants are tenants of the plaintiff and have been inducted by the plaintiff ? OPD.