SONAM CHOMDAN & ANOTHER Vs. RANJIT SINGH

JUDGEMENT

(1.) This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 04.03.2005, passed by learned District Judge, Kinnaur at Rampur Bushahr, in Civil Appeal No.49 of 2004, reversing the judgment and decree dated 26.06.2004 passed by learned Civil Judge (Senior Division), District Kinnaur at R/Peo, H.P., whereby suit of the plaintiff was dismissed.

(2.) Briefly stated facts, as emerged from the record, are that the plaintiff-respondent (hereinafter referred to as the 'plaintiff') filed a suit for declaration with consequential relief of permanent injunction against the defendants on the allegations that defendant No.1 Furbu Dandup (since deceased) was owner in possession of land comprised in Khasra No.349, measuring 0-10-01 hectare, situated in revenue estate Kanam, Up Mohal Kanam Khas, Tehsil Pooh, Distt.Kinnaur. It is averred by the plaintiff that on 17.12.1983, deceased defendant No.1 borrowed a sum of Rs.30,500/- from the plaintiff and agreed to return the same to him within a period of one year, failing which, the plaintiff was to be treated owner in possession of the suit land by oral sale thereof. It is further averred that on 17.12.1983, the possession of the suit land was handed over to the plaintiff by defendant No.1. It is also averred that defendant No.1 did not honour the oral agreement, dated 17.12.1983 and as such, the plaintiff had acquired rights of ownership of possession of the suit land. Thereafter, the plaintiff applied for correction of entries in the books of the Collector. It is further claim of the plaintiff that the Assistant Collector Ist Grade, Pooh, vide its order dated 7.5.1995, with consent of defendant No.1, recorded the plaintiff in possession of the suit land and therefore, defendants No.1 to 3 had no right, title or interest in the suit land. It is averred that defendants No.1 to 3 started interfering with the ownership and possession of the plaintiff over the suit land w.e.f. 17.11.1995 and defendants No.2 and 3 trespassed into the suit land on the night intervening 17.11.1995 and 18.11.1995 and damaged apple plants thereby causing loss of Rs.20,000/- to the plaintiff. In this background, the plaintiff instituted the suit for declaration of his ownership and possession qua the suit land and defendants No.1 to 3 were sought to be restrained from interfering with the ownership and possession of the plaintiff by issuance of a decree of perpetual injunction against them. The plaintiff also sought compensation of Rs.20,000/- from defendants No.1 to 3 for causing damage to his apple plants. It is also averred that during the pendency of the suit, on 9.9.2001 defendant No.1 died and defendant No.2 Sonam Chomdan was brought on record as his legal heir.

(3.) Defendants No.2 and 3, by way of filing written statement, refuted the claim of the plaintiff on the grounds of limitation, maintainability and valuation for the purposes of court fee and jurisdiction. It is averred that defendant No.1 was deaf and dumb and could not have been sued except through guardian and defendants No.2 and 3 denied the ownership and possession of the plaintiff over the suit land. Defendants No.2 and 3 also denied oral sale of the suit land by defendant No.1 in favour of the plaintiff on 17.12.1983 or at any time thereabout. It is averred by defendants No.2 and 3 that defendant No.1 had not borrowed a sum of Rs.30,500/- from the plaintiff on 17.12.1983 and had not agreed to pay the same to him within a period of one year. It is further averred by the defendants that the suit land was not deemed to have been sold in favour of the plaintiff on the alleged failure of the defendant No.1 in returning the amount of Rs.30,500/- to the plaintiff. Defendants No.2 and 3 denied having interfered with the ownership and possession of the plaintiff over the suit land as well as having damaged apple plants of the plaintiff. According to defendants No.2 and 3, defendant No.1 was owner in possession of the suit land and the alleged contract, dated 17.12.1983, pleaded by the plaintiff, was stated to be void. It is alleged that that defendant No.1 was deaf and could not have entered into any contract without representation of his interest by his next friend/guardian. It is further alleged that the plaintiff was not entitled to any relief much less to the discretionary relief of permanent injunction. In the aforesaid background, the defendants sought dismissal of the suit filed by the plaintiff.