HIRDU Vs. SHIV RATRU

JUDGEMENT

(1.) This Regular Second Appeal has been filed by the defendants -appellants, against the judgment and decree dated 4.1.1994 passed by the Additional District Judge, Kullu, whereby the appeal filed by the plaintiff was accepted, the judgment and decree dated 12.7.1990 passed by the trial Court were set aside and the suit of the plaintiff was decreed to the effect that he was a co -tenant in possession alongwith defendants No. 1 to 7 in equal shares in respect of the suit land and had also become owner of the suit land alongwith defendants No. 1 to 7 by operation of law to the extent of his share.

(2.) The facts which are relevant for the decision of the present appeal are that Shiv Ratru, plaintiff had filed a suit for declaration and in the alternative for possession against defendants Hirdu etc., with the allegations that one Jindu was the non -occupancy tenant in possession of the suit land and that said Jindu was the father of the plaintiff and defendants No. 1 to 7. It was alleged that said Jindu died in the year 1957 and after his death, the plaintiff and defendants No. 1 to 7 came in possession of the suit land and they had been paying the rent of the suit land to the owners for the use and occupation of the said land and earlier said Jindu was paying rent to the land owners. It was alleged that defendants No. 8 to 16 were recorded as owners of the suit land in the revenue records and previously their predecessors -in -interest were recorded as owners of the suit land. It was alleged by the plaintiff that after the death of Jindu, defendants No. 1 and 2 had manipulated the entries in the column of the possession in respect of the suit land, inasmuch as the plaintiff and defendants No. 3 to 7 were not recorded as non -occupancy tenants over the suit land under the land owners. It was alleged that entries regarding tenancy of defendants No. 1 and 2, to the exclusion of the plaintiff and defendants No. 3 to 7, were illegal and void and not binding on the rights of the plaintiff and defendants No. 3 to 7. It was alleged that on the basis of the aforesaid entries in the revenue record, defendants No. 1 and 2, had started disputing the claim of the plaintiff and defendants No. 3 to 7, in the suit land. It was alleged that the aforesaid entries in the revenue record in favour of defendants No. 1 and 2 had been corrected by the Assistant Collector 1st Grade vide order dated 5.2.1986 and the Assistant Collector had passed the orders for recording the plaintiff and defendants No. 1 to 7 to be in possession of the suit land as non -occupancy tenants. It was alleged that the Collector unauthorisedly and illegally had set aside the aforesaid order dated 5.2.1986 in appeal vide order dated 17.3.1987. It was alleged that the said order dated 17.3.1987 passed by the Collector was also illegal and void. It was alleged that the plaintiffs and defendants No. 1 to 7 were in possession of the suit land in equal shares and the entries in favour of defendants No. 1 and 2 were illegal and void and not binding on the plaintiff and defendants No. 3 to 7. In the alternative, the plaintiff sought a decree for possession in respect of l/8th share in the suit land.

(3.) The said suit was contested by defendants No. 1 and 2 by filing written statement taking up various preliminary objections. On merits, the allegations made by the plaintiff were controverted with regard to tenancy and possession of Jindu over the suit land. It was admitted that Jindu was the father of the plaintiff and defendants No. 1 to 7. However, it was alleged that at no stage Jindu was in possession over the suit land in any capacity. It was further alleged that Jindu had died in the year 1950. It was further alleged that defendants No. 1 and 2 were the sole tenants over the suit land under defendants No. 8 to 16 and their predecessors -in -interest. It was alleged that defendants No. 1 and 2 had been paying rent to the land owners for use and occupation of the suit land. It was further alleged that on the applicability of the H.R Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the Act). Defendants No. 1 and 2 had acquired ownership rights over the suit land. It was alleged that the plaintiff and defendants No. 3 to 7 had no concern with the suit land and had never paid any rent to the land owners. It was alleged that the Assistant Collector had illegally passed the order dated 5.2.1986, which was rightly set aside by the Collector in appeal vide order dated 17.3.1987.