RAJ DULARI AND ORS Vs. RAJINDER SINGH

JUDGEMENT

(1.) Instant regular second appeal filed under Section 100 of CPC is directed against the judgment and decree dated 4.12.2004, passed by the learned District Judge, Una, HP, in Civil Appeal No. 97/2003, affirming the judgment and decree dated 15.9.2003, passed by learned Sub Judge, Ist Class, Court No.II, Amb, District Una, HP, in Case No. 187/2000, whereby suit filed by the present respondent (hereinafter referred to as "the plaintiff") has been decreed for possession of the suit land by demolishing constructed area marked by letters A to G in site plan Ext.PW1/A.

(2.) Briefly stated facts as emerged from the record are that the Plaintiff filed suit for decree of possession in the Court of learned Sub Judge, Ist Class, Court No. II, Amb, District Una, HP, qua area measuring 0-00-65 Hects. bearing khewat No. 324 min, Khatauni No. 634, Khasra No.400 as per copy of Missal Hakiat for the year 1989 - 90 situated in Up Mohal Ghanari Brahminan Changan, Tehsil Amb, Distruct Una, H.P., (In short 'the suit land') by demolishing constructed area as shown yellow in colour marked by letters A to G. The plaintiff claimed that the suit land was owned and possessed by his father namely deceased Partap Singh along with other co-sharers and has been succeeded by him along with other brothers being sons and LRs of Devinder predeceased son of Partap Singh. Plaintiff claimed that defendant has no right, title and interest in the suit land and defendant in connivance with the lower revenue staff got entered his name in the revenue record as Kabiz through missal No. 270/88 of S.N. T. Gagret at his back and later on about 10 years' ago forcibly at his back raised construction over the portion marked by letters A to G in the site plan. Defendant was called many a times to admit the claim of the plaintiff but same was not admitted and a week ago, he refused to admit the claim of the plaintiff and thus, plaintiff was compelled to file the suit, whereas the defendant by way of written statement, while refuting the claim put forth on behalf of the plaintiff, took specific objections qua the maintainability, non-joinder of necessary party, estoppel, limitation and locus-standi. Defendant denied the case of the plaintiff in toto by stating that during settlement in the village, plaintiff's father with the active connivance of the settlement field staff got prepared the wrong record by increasing the Karukans of the adjoining land and procured wrong record of the ownership in his favour. Moreover, the defendant constructed a shop over the suit land in the year, 1980, in the presence of the plaintiff, who never objected qua the same till filing of the suit. Defendant claimed that since then, he had been continuously watching, seeing and allowing the alleged construction and business of the shop and hence, he is estopped by his own act and conduct to file the suit. However, defendant in written statement stated that in case, plaintiff succeeds in proving his title on the basis of wrong record prepared by the settlement field staff, in that eventuality, suit of the plaintiff is not maintainable as the same is time barred and has lost title as defendant since 1980 is coming in continuous and unobstructed possession with the knowledge of the plaintiff and as such, defendant claimed himself to have become owner by way of adverse possession. Defendant further averred that plaintiff in year, 1984 asserted his right in presence of the respectable persons of the area but since no steps were taken for the recovery of possession, he is not entitled for the possession of the suit land. In view of the aforesaid background, learned trial court framed seven issues. Learned court on the basis of pleadings as well as evidence adduced on record decreed the suit of the plaintiff for possession of the suit land by demolishing the constructed area marked by letters A to G in site plan Ext.PW1A. Being aggrieved and dissatisfied with the aforesaid judgment and decree, defendant/appellant filed an appeal before the Court of learned District Judge, Una, who vide judgment and decree dated 4.12.2009 dismissed the appeal preferred on behalf of the present appellant/defendant, as a result of which, judgment and decree passed by the learned trial Court was upheld. Hence, present regular second appeal, before this Court.

(3.) This Court vide order dated 6.7.2005 admitted the present Appeal on Substantial questions of law framed at Sr. Nos. 1 and 2, which are reproduced herein below:-