KRISHAN SINGH Vs. DAYAL SINGH

JUDGEMENT

(1.) This Regular Second Appeal has been instituted against judgment and decree dated 29.10.2004 rendered by the learned Additional District Judge, Mandi, District Mandi, Himachal Pradesh in Civil Appeal No. 27 of 2000.

(2.) "Key facts" necessary for the adjudication of the present appeal are that the predecessor -in -interest of the present appellants namely Shri Krishan Singh, filed a suit for declaration with consequential relief of injunction against predecessor -in -interest of the present respondents (defendant No. 1, Dayal Singh) (hereinafter referred to as 'defendant No. 1' for convenience sake). According to the averments made in the plaint, suit land was under joint tenancy of the plaintiff and defendant No. 1 under proforma defendant No. 2 namely Purshotam. Plaintiff and defendant No. 1 were cultivating the suit land as non -occupancy tenants since long and they were having this status as on 3.10.1975 and as such under the provisions of Sec. 104(3) of the HP Tenancy & Land Reforms Act, 1972, and Rule 27 of the Himachal Pradesh Tenancy & Land Reforms Rules, 1975, the plaintiff and defendant No. 1 became co -sharers in joint possession over the suit land. However, in the month of July, 1994, defendant tried to throw the plaintiff out of the joint possession over the suit land and asked the plaintiff not to enter the suit land as he had no right, title or interest over the suit land. The plaintiff, therefore, visited the Patwari on 22.7.1994 to verify the revenue record qua the suit land and the plaintiff was astonished to know that the defendant No. 1 somehow managed to get himself recorded in the revenue record as the person in exclusive ownership and possession of the suit land. He also came to know that the name of plaintiff from the non -occupancy tenant was deleted from the revenue record on the basis of order passed by Assistant Collector 2nd Grade, Jogindernagar on 25.3.1985. Defendant No. 1 Dayal Singh moved an application for the correction of Girdavari on 14.11.1983 in the Court of Assistant Collector 2nd Grade, Jogindernagar, who without summoning the plaintiff and without any legal evidence on record ordered the deletion of the name of the plaintiff as non -occupancy tenant from the revenue record and thereafter proprietary rights qua the suit land were conferred upon defendant No. 1, exclusively, under Sec. 104(3) of the Himachal Pradesh Tenancy & Land Reforms Act. Mutation was attested on 25.4.1986. The Assistant Collector 2nd Grade, Jogindernagar had no jurisdiction to effect change in the revenue record. The proceedings had been conducted at the back of the plaintiff.

(3.) Suit was contested by the defendant. According to the averments made on merits, entry showing plaintiff to be a co -tenant with defendant No. 1 were incorrect and contrary to the facts, as the plaintiff never cultivated the suit land. Defendant No. 1 was cultivating the suit land for the last 45 years and as such there was no question of joint possession of the plaintiff over the suit land. It was denied that order passed by Assistant Collector 2nd Grade, Jogindernagar was null and void but the same was valid one and plaintiff was duly served in the correction proceedings and Assistant Collector 2nd Grade, Jogindernagar passed order after making necessary enquiries. Now, defendant No. 1 was absolute owner -in -possession of the suit land. It was denied that the plaintiff was a co - -sharer in the in the joint possession over the suit land. It was also averred that if the Court came to a conclusion that the plaintiff was having any right, title or interest over the suit land, then same had extinguished as the defendant has become owner of the suit land by way of adverse possession and same was open, peaceful, continuous and hostile to the knowledge of the plaintiff. The learned trial Court framed issues on 26.11.1996 and 29.6.1999. Suit was dismissed vide judgment and decree dated 9.11.1999. Plaintiff filed an appeal before the Additional District Judge, Mandi, who dismissed the same vide judgment and decree dated 29.10.2004. Hence, this Regular Second Appeal.