KULBHUSHAN Vs. PREM SINGH AND ORS.

JUDGEMENT

(1.) This appeal under Sec. 100 of the Code of Civil Procedure is directed against the judgment and decree dated 1.10.2004 passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No. 9 -N/XIII/04, whereby the judgment and decree dated 23.10.2003 passed by learned Sub Judge (2), Nurpur, District Kangra, H.P. in Civil Suit No. 28 of 1999 has been reversed.

(2.) The facts of the case are that late Sh. Prem Singh, original respondent/plaintiff filed a suit for declaration along with consequential relief of permanent injunction on the ground that the land comprised in Khata No. 79 min, Khatauni No. 171, Khasra Nos. 766, 1567/767, 1575/1107, Plots -3 area measuring 0 -61 -51 HM, situate in Tikka Chauki, Mauja Milakh Tehsil Nurpur, District Kangra, H.P. was owned and possessed by the plaintiff/respondent and the mutation No. 191 dated 9.7.1998 was illegal, wrong, without jurisdiction, null and void and not binding on the rights of the plaintiff. It was further pleaded that the defendant on the basis of mutation No. 191 had started interfering in the ownership and possession over the suit land and proclaiming himself to be owner of the same and threatening to take forcible possession of the suit land. According to the plaintiff, the suit land was originally owned by Kamla Devi Wd/o Rai Singh and she was the last owner of the suit land and the plaintiff was tenant at 'Will' at the time of coming into force the H.P. Tenancy and Land Reforms Act and on the appointed date the aforesaid act, he has become full owner of the suit land, but the landlord Kamla Devi being a widow, the proprietary rights of the plaintiff remained suspended under Sec. 104 of the H.P. Tenancy and Land Reforms Act. It was further pleaded that said Kamla Devi, the last owner of the suit land, died in the beginning of 1998 and the plaintiff at the time of her death, had become owner of the suit land. As per plaintiff, the defendant vide mutation of inheritance No. 191 dated 9.7.1998 was shown as owner of the suit land and in place of Kamla Devi. It was alleged that the defendant was claiming ownership over the suit land on the basis of will executed by late Kamla Devi. According to the plaintiff, he asked the defendant to admit his claim several times, but in vain.

(3.) The defendant contested and resisted the suit by filing written statement, in which he had taken preliminary objections with regard to maintainability, locus standi, estoppel, cause of action and jurisdiction. On merits, the description of the suit land was admitted. It was denied that the plaintiff is owner of the suit land. It was admitted that the plaintiff is tenant under the defendant and the defendant being ex -serviceman has filled LR -V form before LRO Nurpur for the resumption of land from the plaintiff. It was admitted that earlier the suit land was owned by late Kamla Devi. It was denied that the plaintiff had become owner of the suit land after coming into force the H.P. Tenancy and Land Reforms Act. As per defendant, he being ex -serviceman has every right to get his share resumed under the provisions of LR -V after his retirement. It was denied that late Kamla Devi had lost her proprietary rights in the suit land. According to defendant, late Kamla Devi had executed a registered will in his favour and on the basis of that Will he became owner of the suit land. As per defendant, the plaintiff had no cause of action. It is denied that the defendant was interfering in possession of the plaintiff.