RAJ KUMAR Vs. GIAN SINGH

JUDGEMENT

(1.) By way of instant Regular Second Appeal under Section 100 of the Code of Civil Procedure, challenge has been laid to judgment and decree dated 24.5.2007 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 23- J/XIII/2004, affirming judgment and decree dated 16.12.2003 passed by learned Civil Judge (Junior Division), Jawali, District Kangra, Himachal Pradesh in Civil Suit No. 122 of 1997, whereby suit having been filed by the appellant-plaintiff (herein after, 'plaintiff') for possession, came to be dismissed.

(2.) Necessary facts, as emerge from the record are that the plaintiff filed a suit for possession of land comprised in Khata No. 203, Khatauni No. 257, Khasra No. 165, measuring 0-04- 62 Hectares, as described in the copy of Jamabandi for the year 1993-94, situate in Muhal Jagnoli, Mauza Junat, Tehsil Fatehpur, District Kangra, Himachal Pradesh (herein after, 'suit land'). Plaintiff averred in the plaint, that he alongwith others was in possession of the suit land previously but, during settlement operations, defendant, in connivance with the revenue officials) procured entry in the column of possession and thereafter, forcibly took possession of the suit land in the first week of April, 1985, without the consent of the plaintiff and other cosharers, as such, his possession over the suit land was illegal, wrongful and that of a 'trespasser'. Plaintiff also alleged in the plaint that the defendant has got no right, title or interest over the suit land in any manner and since the defendant failed to accede to the requests of the plaintiff to admit the possession of the plaintiff and other cosharers as owner, and to vacate illegal possession over suit land, he was compelled to file suit.

(3.) Defendant, by way of written statement, resisted aforesaid claim of the plaintiff taking specific objection with regard to maintainability, estoppel, non-joinder of necessary parties, cause of action and limitation etc. On merits, defendant specifically pleaded that he was entitled to become owner of suit land, in terms of agreement to sell dated 11.8.1980, which was executed by the father of the plaintiff. Defendant while specifically denying the averments made by the plaintiff, contended before the learned Court below that the suit land was agreed to be sold in favour of defendant vide agreement to sell dated 11.8.1980 and total amount of sale consideration was received by the parties and possession was delivered to the defendant. Defendant also alleged in the written statement that the plaintiff has not approached the Court with clean hands and suppressed material facts from the Court and intentionally not disclosed factum with regard to agreement to sell inter se parties. Defendant further stated before the court below that since he had paid full and final consideration in terms of agreement to sell dated 11.8.1980, plaintiff may be asked to execute the sale deed in favour of the defendant as agreed vide terms and conditions contained in the agreement.