OM PARKASH AND ORS. Vs. SOM RAJ

JUDGEMENT

(1.) Plaintiffs have come up in appeal against the judgment and decree passed on 26th July, 1989 by Additional District Judge (II), Kangra at Dharamsala, allowing the Defendant's appeal and dismissing the Plaintiffs' suit, thereby reversing the judgment and decree passed on 5th April, 1986, by Sub-Judge First Class, Dehra. by which the suit of the Plaintiffs had been decreed. The appeal was admitted on the following questions of law:

(2.) Decree for declaration as regards their title and regarding entries in the revenue record was claimed by the Plaintiffs with consequential relief of injunction and in the alternative for possession. Foundation for the claim was laid by alleging that Chinti owned and possessed the suit property, who on 21st April, 1949, gifted the same in favour of Mansa Ram, the father of the Plaintiffs. The gift was duly given effect to in the revenue record when mutation thereupon was duly attested and ever since Mansa Ram, their father had been coming in continuous possession of the property as an owner and on his death, they rightly inherited the property as his heirs. They questioned the correctness of the entries by alleging that Smt. Chinti was not in occupation of the property and her name had erroneously been recorded as a tenant. She was never inducted as a tenant. The Defendant had now started claiming himself to be the legatee, on the basis of some oral Will, alleged to have been made in his favour by Chinti. Neither Chinti had any subsisting title to the suit property, nor the alleged Will, if any, made by her could affect the Plaintiffs' right over the property. Thus the Plaintiffs feeling aggrieved had no option but to protect their rights by filing the suit.

(3.) The suit was resisted by the Defendant by alleging that the suit land was owned and possessed by Chinti and she continued to be its owner till her death, whereafter he had succeeded to her estate, on the basis of a Will executed by her. The Defendant denied that Chinti made any gift in favour of Plaintiffs' father. It was also pleaded that in case any gift deed is found to have been executed, the same was neither acted upon, nor possession was delivered to the donee and since Chinti was in possession of the property, she must be presumed to be the owner. It was pleaded in the alternative that in case gift is found to have been made, Chinti was in occupation of the property as a tenant and in case the tenancy is not proved, Chinti was in possession of the property continuously in assertion of her right as an owner to the knowledge of all concerned, which possession of her had ripened into full ownership thereby extinguishing all rights, title and interest of the Plaintiff, if any. The parties were taken to trial on the following issues: