GURDEV Vs. TODAR

JUDGEMENT

(1.) The present regular second appeal has been maintained by appellants, who were defendants before the learned Trial Court (hereinafter referred to as "the defendants") under Sec. 100 CPC against the judgment and decree, passed by the learned Additional District Judge, Mandi, dtd. 21/2/2013, in Civil Appeal No. 47 of 2011, whereby the appeal preferred by the defendants against the judgment and decree, dtd. 31/5/2011, passed by learned Civil Judge (Junior Division), Chachiot at Gohar, District Mandi, H.P., in Civil Suit No. 20 of 2006, was dismissed.

(2.) The key facts of the case can tersely be summarized as under:

(3.) (a). Defendant No. 1, by filing separate written statement, contested the suit of the plaintiff. In the written statement, preliminary objection viz., maintainability, locus standi, want of valid cause of action etc. were raised and on merits defendant No. 1 averred that Smt. Sukri was the previous owner of the suit land. The replying defendant denied that Smt. Sukri ever sold land measuring 4-10-0 bigha to the plaintiff and to this effect any writing of sale was executed and possession of the suit land was handed over to the plaintiff. It was further averred by the replying defendant that Smt. Sukri never sold any piece of land to the plaintiff, therefore, there was no question of sale consideration, last installment and handing over the possession etc. 3(b), As per defendant No. 1, copy of writing is fake, fictitious and forged one. Since no sale was ever made by Smt. Sukri in favour of the plaintiff, therefore, no question of possession and becoming of owner of the suit land arise. Defendant No. 1 also averred that Smt. Sukri died on 14/12/2004 and she had validly, legally and rightly bequeathed the suit land in his favour, through registered Will No. 46, dtd. 16/5/1995, and to this effect mutation was openly attested in his favour, thus the plaintiff has no right, title and interest over the suit land in any manner. The replying defendant also denied that he had sold the suit land to defendants No. 2 and 3 without delivery of possession, as alleged. He has averred that previously Smt. Sukri was owner-in-possession of the suit land and subsequent to her death, the suit land came in his possession and after the sale, the same came in exclusive possession of defendants No. 2 and 3. As per defendant No. 1, the plaintiff took two contradictory pleas, i.e., he became owner of the suit land by way of alleged sale and conversely he also alleged that he became owner by way of adverse possession and he cannot be allowed to do so, as per the provision of law. 3(c). Defendant No. 1 further averred that Will was right and legal one and his name has rightly been incorporated in the revenue record and he had rightly sold the suit land to defendants No. 2 and 3 with delivery of possession. As per defendant No. 1, the plaintiff was never owner and not in possession of the suit land, thus there was no question of declaring him owner-in-possession of the suit land.