PARKASH CHAND AND ANOTHER Vs. TARO DEVI

JUDGEMENT

(1.) By way of this appeal, appellants/plaintiffs have challenged the judgment and decree passed by the Court of learned Additional District Judge, Fast Track Court, Una, in Civil Appeal No. 54/2K RBT 21/04/2K dated 28.12.2007, vide which learned Appellate Court while allowing the appeal filed by the respondents/defendants set aside the judgment and decree passed by the Court of learned Sub Judge, Court No. II, Una, in Civil Suitor No. 95/84 dated 31.01.2000, whereby learned trial Court had decreed the suit of the plaintiffs for declaration holding them to be owners in possession of the suit land and declared Mutation No. 178 dated 30.08.1978 as null and void and further restrained the defendants from causing any interference in the possession of the plaintiffs over the suit land.

(2.) Brief facts necessary for adjudication of this appeal are that the appellants/plaintiffs (hereinafter referred to as the plaintiffs), filed a suit praying for declaration to the effect that land measuring 5 Kanals 7 Marlas being 10/12 share out of land measuring 6 Kanals 8 Marlas bearing Khewat No. 11, Khatauni No. 20, Khasra Numbers 222, 67, 69, 138, 336, 337, 585, 587, 590, 595, 596 and 638, as entered in jamabandi for the year 1978-79, situated in village Chhatther Tappa Chawaki Maniar, Tehsil Bangana, District Una, was owned and possessed by the plaintiffs and the defendants had no right, title or interest over the same and Mutation No. 178 dated 30.08.1978 was procured by the defendants regarding conferment of ownership rights at the back of the plaintiffs which was wrong and null and void and that the defendants be injuncted/restrained from interfering in any manner in the plaintiffs' possession over the suit land or from ousting them from the suit land. It was also prayed that if the defendants took possession or were otherwise found to be in possession then decree for actual joint possession be passed in favour of the plaintiffs against the defendants. As per the plaintiffs, the suit land was owned and possessed by Madan Mohan, Ram Kishan, Jai Ram sons of Gopala two share and Rulia son of Shiv Ditta father of plaintiffs 10 share. Madan Mohan etc. mortgaged their one share out of two share to Bishan Chand son of Tulsi and later on Bishan Chand son of Tulsi further mortgaged the same to Dhania and Sukhdev. The mortgagee entered in possession of one share out of 12 share. Defendants were inducted as tenant by the mortgagee on their share which was mortgaged to them. The defendants were never inducted as tenant over the suit land by the plaintiffs or their predecessor. It was further mentioned in the plaint that the defendants at the back of plaintiffs and their predecessor on 30.08.1978 got attested Mutation No. 178 in their favour with regard to conferment of ownership right in their favour under Section 104 of H.P. Tenancy and Land Reforms Act. As per the plaintiffs, defendants were not in possession of 10/12 share of the plaintiffs nor they were their tenants and mutation regarding conferment of ownership rights and subsequent entries in the revenue records in their favour were wrong, baseless, void, unauthorizedly made and ineffective as against the plaintiffs. It was further mentioned in the plaint that the defendants emboldened by the wrong mutation and subsequent entries in their favour, were threatening in the rights of the plaintiffs and on enquiry from the consolidation staff, the plaintiffs came to know about the mutation and wrong entries made in the name of the defendants. It was on these basis that the suit was filed by the plaintiffs.

(3.) The defendants contested the claim of the plaintiffs in the written statement and stated that the defendants in fact were coming in possession of the suit land since long even before the mortgage as tenant at will on payment of rent and they had as such become owners of the suit land by conferment of proprietory rights by the operation of the H.P. Tenancy and Land Reforms Act and the Rules made there-under. It was further the stand of the defendants that if they were not proved to be owners over part of the suit land by way of conferment of proprietory rights upon them under the provisions of H.P. Tenancy and Land Reforms Act and had acquired ownership right of that part of the land by adverse possession. The defendants defended the mutation entered in their favour as well as the entries in revenue records which existed in their favour and on these grounds, the defendants denied the claim of the plaintiffs.