KHEM CHAND Vs. GOPAL SINGH

JUDGEMENT

(1.) By way of this appeal, the appellant has challenged the judgment and decree passed by the Court of learned District Judge, Solan in Civil Appeal No. 77-S/13 of 2004 dated 23.05.2006, vide which, learned appellate Court while dismissing the appeal filed by the plaintiff affirmed the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Kasauli, District Solan in Civil Suit No. 332/1 of 1999/1994 dated 10.09.2004, whereby the learned trial Court had dismissed the suit for declaration and injunction filed by the plaintiff.

(2.) Brief facts necessary for the adjudication of the present case are that appellant/plaintiff (hereinafter referred to as 'the plaintiff') filed a suit for declaration and injunction on the grounds that land comprised in Khata No. 5 min, Khatauni No. 8, Khasra No. 129, measuring 5 bighas was recorded in the name of plaintiff as owner and defendant had been shown in possession of the said land as per entries in copy of jamabandi for the year 1992-93 for Mauza Chainthu, Pargna Nali Dharti, Tehsil Kasauli. As per the plaintiff, suit land was in possession of Smt. Durgi, who died in the year 1986 and the revenue entries showing Smt. Durgi to be tenant in possession of the suit land were wrong and illegal. Smt. Durgi was real sister of mother of Shri Harnam Singh and she and her husband were economically not well off and due to this reason, Smt. Chawali, who was Bhabi and close relative of Harnam Singh had given suit land for use and possession to late Shri Hem Ram and after the death of Hem Ram to Smt. Durgi. It was further the case of the plaintiff that possession of Smt. Durgi was permissive but in the revenue record, she was shown as Gair Marusi and revenue entries showing Smt. Durgi or Sh. Hem Ram as Gair Marusi were wrong, illegal and void. As per the plaintiff, neither Sh. Hem Ram nor Smt. Durgi were ever inducted as tenants over the suit land nor they had any right, title or interest to possess the suit land in any manner. It was further the case of the plaintiff that after the death of Smt. Durgi, defendant in connivance with revenue staff succeeded in manipulating revenue entries in his favour and in the column of possession entry as "Gopal Singh Putar Sohandu Ram Putar Paras Ram Sakan Deh Gair Marusi Baruai Vasiyat" was incorporated. As per the plaintiff, said revenue entry was manipulated and incorporated behind the back of late Smt. Chawali, the predecessorin-interest of the plaintiff. It was further the case of the plaintiff that Durgi was old, weak, village simpleton and indecisive lady, who had never executed any Will in favour of the defendant. As per the plaintiff, the Will was a result of fraud, misrepresentation and manipulation and in fact Durgi was not having any right, title and interest in the suit land except to possess the same under permission and as such, Durgi could not have had executed any Will qua the suit land. It was further the case of the plaintiff that after the death of Durgi, Smt. Chawali became owner in possession of the suit land and permissive possession of Durgi came to an end. It was further the case of the plaintiff that after the death of Durgi, defendant started interfering with the ownership and possession of late Smt. Chawali over the suit land, who requested the defendant not to do so. After the death of Smt. Chawali, defendant again started interfering with the possession of the plaintiff over the suit land on the basis of wrong revenue entries existing in favour of the defendant, whereas plaintiff was owner in possession of the suit land and defendant who was stranger to the suit land has no right, title or interest over the suit land in any manner whatsoever. On these basis, plaintiff prayed for a decree in his favour to the effect that he was owner in possession of the suit land and revenue entries in favour of the defendant qua the suit land were wrong and illegal and that defendant had no right, title or interest over the same. Plaintiff also prayed that defendant be restrained from interfering with the ownership and possession of the plaintiff over the suit land in any manner whatsoever and in the alternative, decree for possession on the basis of title was prayed for.

(3.) In the written statement filed by the defendant, the case as was set up by the plaintiff was denied. As per the defendant, the predecessor-in-interest of defendant late Smt. Durgi was a tenant qua the suit land and she was inducted as tenant over Khasra No. 129, measuring 5 bighas on a Chaukauta of '3/- per annum and she was inducted as such by Jhathu, son of Shibu. It was further the case of the defendant that after the death of Jhathu, Smt. Chawli, his widow succeeded vide mutation No. 128 and mutation of ownership could not be attested by operation of Himachal Pradesh Tenancy and Land Reforms Act as Smt. Chawali happened to be a widow, but the confirmation of proprietary rights were automatic by virtue of H.P. Tenancy and Land Reforms Act and revenue records with regard to tenancy were in accordance with the physical possession of the defendant. It was further the case of the defendant that he succeeded to the suit property by way of Will of Smt. Durgi registered with Sub Registrar dated 17.08.1986 and the same was in the knowledge of the plaintiff. It was further the case of the defendant that Durgi of her free will and senses had executed a valid Will in favour of the defendant and the contention of the plaintiff with regard to execution of Will was wrong and hence denied. It was further the case of the defendant that Chawali was not succeeded by any one including the plaintiff and Chawali had never executed any Will in favour of defendant nor there was any question of execution of any Will as she had never intended to Will her property and in case plaintiff had obtained any Will in his favour, the same was result of fraud and misrepresentation on the part of his father. On these bases, the suit of the plaintiff was contested by the defendant.