DHARAM SINGH Vs. FAQUIR CHAND AND ORS

JUDGEMENT

(1.) This appeal has been filed by the appellant- defendant No.1 against the judgment and decree dated 30.3.2007, passed by the learned Additional District Judge, Fast Track Court, Una, H.P., reversing the judgment and decree dated 29.06.2000, passed by the learned Sub Judge, Ist Class, Court No.2, Amb, District Una, H.P., whereby the suit filed by the plaintiffs-respondents has been dismissed.

(2.) Briefly stated facts, as emerged from the record, are that the respondents-plaintiffs (hereinafter referred to as the plaintiffs) filed a suit for declaration to the effect that they are owners in possession of land measuring 0-20-16rt o Hects. comprised in Khewat No.8 min, Khatauni No.41, Khasra No.18 (0-00-57), 20 (0-13-89) and 19 (05-70) as entered in Misal Haquiat Bandobast for the year 1986-87, situated in village Seri, Tehsil Amb, District Una, H.P. (hereinafter referred to as the suit land). It is averred that previously the defendants were owners of the suit land but in the year 1952 the they orally mortgaged the suit land in favour of the plaintiffs with possession for a sum of Rs.300/-. Though a mutation No.461 was entered regarding the mortgage, but the same could not be sanctioned because the defendants failed to appear before the Revenue Officer at the time of attestation of the mutation and accordingly the same was rejected. However, the plaintiffs were put in possession of the land in dispute by the defendants at the time of mortgage and they continued in possession and rather still in possession of the suit land. It is averred that the defendants did not redeem the suit land till today and the period of redemption has already been lapsed and now the plaintiffs have become owners of the suit land by afflux of time and the defendants have lost all right, title and interest in the same. It is further averred that defendant No.1 was the Lamberdar of the village and was having influence over the local revenue field staff and revenue officials. It is also averred that defendant No.1 had moved an application for correction of entries and due to his influence, he was able to obtain an order dated 16.2.1990 from the Land Reforms rt o Officer, Amb in his favour for correction of entries of possession of the suit land as Khud Kasht. This order of Land Reforms Officer was set aside by the Divisional Collector, Amb in appeal vide order dated 7.12.1990, but the same was again revised by Divisional Commissioner, Kangra Division Dharamshala vide order dated 27.11.1991 and the aforesaid order of Land Reforms Officer was restored. It is averred that the orders dated 27.11.1991 and 16.2.1990 passed by Divisional Commissioner Kangra and Land Reforms Officer, Amb, are wrong, illegal, baseless, misconceived and not sustainable in the eyes of law or the same are not binding upon the legal rights of the plaintiffs as owners in possession. It is the claim of the plaintiffs that they are still in possession of the suit land and the defendants have left with no right, title or interest therein. It is averred that on the basis of aforesaid orders of Land Reforms Officer and Divisional Commissioner the defendants are threatening to interfere in the possession of the plaintiffs and to take forcible possession of the suit land by raising construction etc., though they have no right to do so. It is also averred that the plaintiffs requested the defendants time and again to admit their claim, but they are not ready to do so. Hence, the plaintiffs filed a suit for a decree for declaration to the effect that the plaintiffs are owners in possession of the suit land as they have perfected their title as owners by afflux of time being mortgagees with possession rt o and the orders dated 27.11.1991 passed by Divisional Commissioner, Kangra Division Dharamshala and that of Land Reforms Officer, Amb dated 16.2.1990 to the contrary, ordering change of entries of possession in the name of defendants are wrong, illegal baseless and not sustainable nor binding upon the rights of the plaintiffs as owners in possession and for issuance of permanent injunction as a consequential relief restraining the defendants from interfering in any manner or raising any sort of construction etc. and from taking forcible possession of the suit land in any manner, with a prayer for recovery of possession in case the defendants succeed to taking forcible possession of the suit land during the pendency of the suit.

(3.) Defendant No.1 and 3, by way of filing joint written statement, refuted the claim of the plaintiffs on the grounds of maintainability, locus-standi, res-juidicata, constructive res-judicata, limitation and estoppel. On merits, it is alleged that defendants No.1 and 2 never mortgaged the suit land with the plaintiffs. It is averred that in fact there was an oral understanding between them to mortgage the suit land, but the same could not be matured for want of payment of full mortgage amount i.e. Rs.300/- as the plaintiffs had paid only Rs.150/-, which was immediately returned by the defendants to the plaintiffs against a proper receipt dated 15.5.1953 and consequently the mutation was rejected. It is further averred that since there was no mortgage, the plaintiffs never came rt o in possession of the suit land at any point of time in any capacity. It is further averred that defendant No.3 has purchased the entire suit land from defendants No.1 and 2 vide two different sale deeds dated 5.6.1995 and 31.10.1995 for a valuable consideration and now neither the plaintiffs nor defendants No.1 and 2 have any right, title or interest in the suit land and defendant No.3 is exclusive owner in possession of the same.