MOBINA AND ORS. Vs. KALA

JUDGEMENT

(1.) Present appeal is filed against judgment and decree dated 3.9.2002 passed by learned District Judge Sirmour District at Nahan HP announced in civil appeal No. 24 -CA/13 of 2002 title Neen Ali and others Vs. Smt. Kala. Learned District Judge affirmed judgment and decree of learned trial Court passed in civil suit No. 38/1 of 2000/1996 title Neen Ali and others Vs. Smt. Kala.

(2.) Sh. Jaan Mohammad deceased plaintiff filed suit for declaration to the effect that plaintiff is owner in possession of suit land by way of oral sale deed and by way of right of adverse possession and entries in the revenue record relating to Smt. Choli and entries of succession in favour of defendant are illegal, fraudulent, wrong and not binding upon deceased plaintiff and his legal heirs. Consequential relief of permanent injunction also sought restraining defendant from interfering in suit land comprised in khata -khatauni No. 289/539 khasra No. 276 situated at mauza Manpura Deora Tehsil Paonta Sahib District Sirmour HP. It is further pleaded that Nanak son of Sh. Fatta was owner of suit land. It is further pleaded that Nanak left village in the year 1972 and thereafter deceased plaintiff forcibly occupied suit land in the year 1973 and since 1973 deceased plaintiff is cultivating suit land and after death of deceased his legal heirs are in possession of suit land as owner in possession openly to the notice of true owner Nanak and after death of Nanak to the notice of his widow Smt. Choli and perfected title by way of right of adverse possession in the year 1986 -87. It is further pleaded that Smt. Choli died and defendant inherited her property as legal heir. It is further pleaded that in the month of August 1996 husband of defendant threatened deceased plaintiff to dispossess the deceased plaintiff from suit land. It is further pleaded that Sh. Mansa Ram who was general attorney of Nanak received a sum of Rs. 3800/ - (Three thousand eight hundred) as sale consideration amount but did not execute sale deed. It is further pleaded that in alternative right of adverse possession has accrued to deceased plaintiff through his legal heirs. During the pendency of civil suit plaintiff Jaan Mohammad died and his legal heirs brought on record. Prayer for decree of suit sought as mentioned in relief clause of plaint.

(3.) Per contra written statement filed on behalf of defendant pleaded therein that deceased plaintiff and legal heirs of deceased plaintiff have no right, title or interest in suit property and they have no locus standi to file suit. It is further pleaded that suit in the present form is not maintainable. It is further pleaded that Smt. Choli widow of Nanak and mother of defendant gave suit land to late Sh. Jaan Mohammad for cultivation purpose as licensee in the month of June 1975 with condition that whenever late Smt. Choli or her daughter would need or demand suit land then licensee late Sh. Jaan Mohammad or his successor would hand over vacant possession of suit land. It is further pleaded that possession of late Sh. Jaan Mohammad was as licensee over suit land. It is further pleaded that on 15th June 1996 defendant requested late Sh. Jaan Mohammad to deliver the possession of suit land but in vain. It is further pleaded that intention of late Sh. Jaan Mohammad and thereafter his legal heirs became dishonest and late Sh. Jaan Mohammad filed present suit. It is further pleaded that late Sh. Jaan Mohammad has suppressed true facts from Court. It is further pleaded that late Jaan Mohammad has no right, title or interest in the suit land. It is further pleaded that on dated 15.11.1996 Jaan Mohammad refused to deliver the possession of suit land. It is further pleaded that possession of deceased plaintiff from 15.11.1996 is in the capacity of tress passer and plaintiff and his legal heirs are under legal obligation to deliver possession of suit land to defendant. It is further pleaded that defendant is also entitled for special cost under Sec. 35A CPC. It is further pleaded that Jaan Mohammad did not dispute title of defendant. Prayer for dismissal of suit sought. Deceased plaintiff through his legal heirs filed replication and re -asserted the allegations mentioned in plaint.