MILKHI RAM Vs. STATE OF HP AND ORS

JUDGEMENT

(1.) Instant regular second appeal filed under Section 100 of CPC is directed against the judgment and decree dated 27.11.2008, passed by the learned Additional District Judge, Bilaspur, HP, in Civil Appeal No. 31/13 of 2006/2005, affirming the judgment and decree dated 28.6.2005, passed by learned Civil Judge, (Sr. Div.) Ghumarwin, District Bilaspur, H.P. in Case No. 41/1 of 2004/96, whereby suit of the appellant-plaintiff (hereinafter referred to as "the plaintiff") was dismissed and he was not held entitled for the relief of declaration and injunction.

(2.) Briefly stated facts as emerge from the record are that plaintiff filed suit for declaration to the effect that he is non-occupancy tenant with defendant No. 5-Janki Devi (stands deleted) on the basis of rent on the land measuring 14.4 bighas comprised in khasra No. 93 khewat/Khatoni No.9/9 situated in village Dharwara, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. (in short "the suit land") and revenue entries to the contrary are illegal. Plaintiff also sought declaration that the gift deed executed by Janki Devi in favour of defendant No. 2 and mutation attested on the basis of same on 9.2.1995 by A.C. 2nd Grade Ghumarwin may also be declared illegal. In the aforesaid background, plaintiff sought relief of permanent prohibitory injunction and in alternate for possession.

(3.) Perusal of the plaint suggests that plaintiff claimed himself to be owner in possession of the suit land being non-occupancy tenant. He alleged that Janki Devi, who was his real "Mausi" and her husband was his Uncle "Tau". It is also averred in the plaint that after death of husband of Janki Devi, since there was nobody to look after her, she inducted father of plaintiff orally as non-occupancy tenant over the suit land on payment of 1/4th of the produce half yearly ending with crop session in October and May. It is also contended in the plaint that father of the plaintiff expired in year, 1990 and thereafter, plaintiff succeeded him on the basis of natural succession and since then, he is in possession of the suit land. Plaintiff also contended that defendants taking undue advantage of her old age, executed gift deed in favour of defendant No. 2 (The Secretary, H.P.B.S.E.) with the intention to raise construction over the part of the suit land. Plaintiff also objected the execution of gift deed, if any, before A.C., 2nd Grade, Ghumarwin on 28.11.1994 at the time of attestation of mutation on the basis of gift deed. Plaintiff also alleged that possession was not transferred to defendant No. 2 and defendant No. 5-Janki Devi did not execute any gift deed, which is result of fraud, mis-representation and undue influence. Plaintiff also averred in the plaint that defendant No. 2 has neither accepted the gift deed nor any person, on his behalf accepted the possession. Plaintiff also stated in the plaint that building of Primary School Dharwala is at a distance of 200/250 metres from the suit land and as such, question of acquiring suit land does not arise. Plaintiff in alternate prayed that if he is not held to be non-occupancy tenant, then he may be held entitled to be in possession over the suit land by way of tacking from the time of his father.