VED PARKASH Vs. GOPALA & OTHERS

JUDGEMENT

(1.) Instant Regular Second Appeal filed under Section 100 of the Code of Civil procedure is directed against the judgment and decree dated 5.9.2006, passed by learned District Judge, Bilaspur, District Bilaspur, H.P., affirming the judgment and decree dated 6.6.2002, passed by learned Sub Judge Ist Class, Bilaspur in Civil Suit No.118/1 of 1995, whereby suit of the plaintiffs for declaration and permanent prohibitory injunction and alternative for joint possession was decreed.

(2.) The brief facts, as emerge from the record are that the plaintiffs(hereinafter after referred to as the respondents) filed suit declaration and permanent prohibitory injunction and in alternative for joint possession against the defendant( hereinafter referred to as the appellant) in the Court of leaned Sub Judge, 1st Class, Bilaspur averring therein that land measuring 7-11 bighas, comprising khasra No.59/7 is in joint possession of the plaintiffs and the defendant as tenant and the revenue entries the name of the defendant as exclusive tenant are wrong, void and illegal and plaintiffs are not bound by such fictitious, fraudulent and unauthorizedly prepared revenue entries in collusion with the revenue officials. Plaintiffs also claimed in the plaint that defendant has no right, title or interest in the joint tenancy of the plaintiffs with consequential relief for permanent injunction restraining the defendant from making any kind of interference in the joint tenancy and possession of the plaintiffs. Plaintiff further averred that plaintiff No.1, Gopala Ram and Baja Ram, father of plaintiffs No.2 and 3 and defendant Tulsi Ram were the real brothers and they were joint tenants in possession of the land measuring 10.11 Bighas under the land owners on payment of 1/4th of the produce as rent. Plaintiffs further averred in the plaint that after the death of Sh.Baja Ram, plaintiffs No.2 and 3 inherited his tenancy rights as his sons. Plaintiff further averred in the plaint that after coming into operation of the H.P. Tenancy and Land Reforms Act, land measuring 3 bighas out of the total tenancy land was resumed by the owners, as result of which, suit land measuring 7.11 bighas is in the joint tenancy of the plaintiffs and the defendant and they are in possession of the same. Plaintiff specifically stated in the plaint that in the last week of June, 1995 when they were cultivating the suit land, the defendant interfered in the joint possession and questioned the rights of the plaintiffs in the joint tenancy and after making inquiry, the plaintiffs came to know that the defendant has manipulated the wrong revenue entries in his favour in collusion with the revenue officers. The plaintiffs, thereafter called upon the defendant not to interfere in the joint tenancy land and admit the claim of the plaintiffs by getting revenue entries correct in the name of the plaintiffs but no steps were taken and as such, plaintiffs were compelled to file the suit before the learned trial Court.

(3.) Defendants, by way of written statement refuted the claim of the plaintiffs in toto by stating that Sh. Baja Ram, father of plaintiffs No.2 and 3 and defendant were not in joint possession of the suit land as tenants. Defendant claimed that suit land was in possession of the defendant exclusively throughout and as such, Sh.Garja Ram and Baja Ram at the time of sanction of mutation No.74, gave their consent to record the possession of the defendant qua remaining land as tenant under the land owner and now the defendant has become owner of the suit land after coming into the force the operation of H.P. Tenancy and Land Reforms Act. Defendant further contended that the revenue entries have been corrected on the basis of the tenancy and possession of the defendant, therefore, there is no question of changing the revenue entries in the name of the plaintiffs. The defendant specifically denied the possession of the plaintiffs as joint tenants, rather defendant raised preliminary objection No.4 stating therein that the plaintiffs have relinquished their share in favour of the defendant at the time of mutation No.74 in the presence and with the consent of the land owners because out of land measuring 10.11 bighas, 1.10 bighas of land was resumed by land owner and the remaining land was given as non-occupancy tenant to the defendant. In the aforesaid background, defendant refuted the claim of the plaintiffs by stating that the plaintiffs have no right to get the revenue entries declared as null and void, especially in view of the mutation No.74, the plaintiffs are not in possession of any portion of the suit land. Defendant also raised objection with regard to jurisdiction of the Civil Court to decide the controversy at hand.