FATE RAM AND ORS. Vs. PARVATI

JUDGEMENT

(1.) CHALLENGE herein is to the judgment dated 17.12.2003 passed by learned Additional District Judge, Mandi in Civil Appeal No. 16 of 1999 affirming thereby the judgment and decree passed by learned Sub Judge, 1st Class, Court No. 1, Mandi in Civil Suit No. 103/98 (92) on the dismissal of the first appeal.

(2.) IT is the defendants, who are in second appeal before this Court. The complaint is that the judgment and decree passed by both Courts below is against the law and also the facts of the case. Learned lower appellate Court while deciding the appeal has fell into error in not appreciating the facts relating to the status of the defendants as tenants and failure to draw appropriate inferences from the proved facts has vitiated the judgment and decree under challenge. The Courts below allegedly fell into a grave error giving undue weightage to the factum of the non -production of rent receipts of the defendants, because in view of the evidence brought on record by the plaintiff herself, the rent receipts were not being issued by the land -lord hence the non -production thereof should not have been given much importance. The factum of the plaintiff and her mother both are residing for the last more than 40 years at Bajaora, District Kullu has not been taken into consideration. The plea of the defendants that the rent used to be deposited with one Smt. Charan Dassi, maternal aunt of plaintiff is duly proved from the evidence produced by the plaintiff herself. Said Charan Dassi has not been produced to deny this fact, had the rent been not deposited with her. The judgment and decree on account of non -appreciation of the evidence as has come on record by way of own statement of the plaintiff that she is not the daughter of Smt. Padmu born to her from the lions of Sh. Gholu her previous husband, from whom the property in dispute had come to her. The plaintiff, therefore, not born to Smt. Padmu from lions of Sh. Gholu, the previous owner of the suit land is not entitled to claim the same in any manner whatsoever nor has any locus -standi to file the suit. The revenue entries qua the suit land stood duly rebutted were wrongly relied upon. On account of clubbing of the main issues for decision, the judgment and decree under challenge is vitiated and has been sought to be quashed and set aside.

(3.) IF coming to the factual matrix, the suit land is measuring 17 -14 -8 bighas entered in Khewat No. 10, Khatauni No. 11, Khasra Nos. 266, 313, 316, 337, 381, 383, 390, 427, 428, 474, 488, 514, 518, 525, 581, 586, 589, 592 and 607 Kitas 20 situated at village Tundla/443, Ilaqua Badar, Tehsil Sadar, District Mandi. Its previous owner was one Sh. Gholu. Smt. Padmu, mother of the respondent -plaintiff was married to said Shri Gholu. The suit property came in the hands of Smt. Padmu on the death of her previous husband through Gholu. Said Smt. Padmu settled with one Hukme Ram at village Bajaora, District Kullu. The respondent -plaintiff was born to her from the lions of said Shri Hukme Ram. Smt. Padmu, mother of the plaintiff also died and mutation No. 121 of the suit land came to be sanctioned and attested in favour of the plaintiff on 9.10.1992, as is apparent from the copy of Jamabandi for the year 1990 -91, Ext. P -A. The respondent -plaintiff filed the suit for the decree of permanent prohibitory injunction and also for possession of the suit land as a consequential relief on the ground that though it is she who is owner in possession of the suit land, however, the defendants are threatening to take forcible possession thereof form her. Subsequently, by way of amendment, it is pleaded that she was dispossessed forcibly by them from the suit land in November, 1995.